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THE MACMILLAN COMPANY 

NEW YORK ■ BOSTON • CHICAGO - DALLAS 
ATLANTA • SAN FRANCISCO 

MACMILLAN & CO., Limited 

LONDON • BOMBAY • CALCUTTA 
MELBOURNE 

THE MACMILLAN CO. OF CANADA, Ltd. 

TORONTO 



WILLIAM MAXWELL EVA NTS 

From a portrait by Thomas Hicks, painted in 1867. The 

property of The Century Club, Neu York. Reproduced 

through the courtesy of The Century Club. 



ARGUMENTS AND SPEECHES 



OF 



William Maxwell Evarts 

EDITED, WITH AN INTRODUCTION, BY HIS SON 

SHERMAN EVARTS 



In Three Volumes 
Vol. I 



THE MACMILLAN COMPANY 
1919 

AU rights reserved 



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Copyright, 1919, by 

THE MAC MILL AN COMPANY 

Set up and printed. Published September, 1919. 



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TO 

THE MEMORY OF MY MOTHER 

HELEN MINERVA WARDNER EVARTS 

THESE VOLUMES ARE AFFECTIONATELY DEDICATED 



CONTENTS OF VOLUME I 

PAGE 

Introduction ix 



Professional Arguments 

I. Brief and Argument in the New York Court of Appeals, 
January 24, 1860, in the case of The People of the 
State of New York against Jonathan Lemmon. 
(The Lemmon Slave Case) 3 

II. Address to the jury in summing up for the Govern- 
ment, in the United States District Court, Southern 
District of New York, October 29, 30, 1861, in the 
case of The United States against Thomas Harrison 
Baker and Others, the Officers and Crew of the 
schooner "Savannah," on the charge of Piracy. 
(The Savannah Privateers) 91 

III. Argument in the Supreme Court of the United States 

on behalf of the Government, February, 1863, in the 
case of Peter Miller et al.. Claimants of the barque 
"Hiawatha" against The United States, and other 
cases. (The Prize Cases) 214 

IV. Argument in the Supreme Court of the United States, 

February, 1866, in the case of Churchill against the 
City of Utica. (Bank Tax Case) 295 

V. Argument in defence of President Andrew Johnson, 
April-May, 1868, before the Senate of the United 
States, sitting as a Court, in the Impeachment Trial 
of the President 340 

VI. Argument in the Supreme Court of the United States, 
for the Government, December, 1868, in the case of 
Hepburn against Griswold. (Legal Tender Case) . 526 

vii 



viii CONTENTS 

VII. Argument before the International Tribunal at 
Geneva, Switzerland, on behalf of The United 
States, under the Treaty of Washington, August, 
1872. (The Alabama Claims) 582 

Vm. Argument before the Mixed Commission on British 
and American claims under the Treaty of Washing- 
ton, August, 1873, for the claimants in the case of 
S. Isaac Campbell & Co., owners of the cargo of the 
Barque "Springbok," against The United States. 
(The Springbok Case) 665 



INTRODUCTION 

It is related of John Bright that when consulted about his 
biography he would turn the subject aside by saying, "My 
life is in my speeches." That his life was in his speeches 
may be said with much truth of Mr. Evarts. His position 
before the public of his day was, to be sure, in no sense upon 
a parallel with that of the great tribune of the English 
people, and the traditional environment, the training and 
education of the two men were wholly dissimilar. But the 
chief reminders of Mr. Evarts to-day are his speeches. 
Through them can best be recalled the man, whether they 
were the arguments of the advocate, or political speeches, or 
whether they appear in the form of elaborate orations at im- 
portant commemorations, or in the lighter vein of occasional 
addresses. 

At the very outset of his career Mr. Evarts leaped, at one 
bound, into prominence as an advocate in the profession in 
which his acknowledged supremacy formed, perhaps, the 
chief title to his fame. Just past twenty-four years old, 
the duty was by his senior associates assigned to him, as 
junior counsel for the defendant, of opening to the jury the 
case of the defense in the trial of the notorious forger, Mon- 
roe Edwards. The opportunities offered in this cause 
celebre for a young man to win his spurs were unusual but 
manifest. That so important a part in the trial was given 
him by his elder brethren at the bar, chief among whom was 
Senator Crittenden of Kentucky, speaks well for the way 
in which he had acquitted himself in the earlier preparation 
and conduct of the case, a great part of which had fallen 
upon his shoulders. Expecting to occupy but a few min- 
utes in his address to the jury, he spoke for an hour and a 
half, eliciting at the close a ripple of applause from the 
crowded audience that public interest in the cause had 



IX 



X SPEECHES OF WILLIAM MAXWELL EVARTS 

brought to the court room. The applause of course was 
suppressed by the Court. It would have been no more than 
natural for any young man, however modest, to have felt 
at least a passing pleasure in so flattering a tribute, but what 
made a deep impression upon Mr. Evarts was the expression 
of enthusiastic encouragement that came from his dis- 
tinguished associate. Many years after, he thus speaks, in 
conversation with one of Senator Crittenden's daughters, as 
related in the Life of Crittenden, of their association in this 
cause: "I shall never forget that trial," said Mr. Evarts, "in 
connection with your father. I was a young man on the 
threshold of my professional career, and your father's repu- 
tation was firmly and widely established as a lawyer and a 
statesman. His cordial manner throughout the trial is most 
gratefully remembered by me, and at its close he asked 
me to take a walk with him. During the walk he took 
a slight review of the trial, complimented me upon my 
course during its progress and the ability he was pleased 
to think I had manifested, and in conclusion, grasping my 
hand with warmth, he said, 'Allow me to congratulate and 
encourage you on the course in life you have adopted. I 
assure you that the highest honors of the profession are 
within your grasp, and with perseverance you may expect 
to attain them.' These words from Mr. Crittenden would 
have gratified the pride of any young lawyer and given him 
new strength for the struggles of his profession. I can truly 
say they have been of the greatest value to me through life. 
When I came to Washington to take part in the defense 
of President Johnson, the associations of the Senate Chamber 
recalled the memory of your father's words and renewed my 
gratitude for his generous encouragement of my early hopes." 
When he recalled these words of Senator Crittenden the 
impeachment trial of the President, in which he had taken 
a leading part for the defense, had but just closed in a victory 
for the President. The succeeding ten years held yet in 



INTRODUCTION xi 

store for Mr. Evarts a chief participation in the great 
Arbitration at Geneva, the Contest for the Presidency be- 
fore the Electoral Commission, and that cause celebre, which 
assumed in the imaginations and feeling of the whole coun- 
try the proportions of a great public cause, — the famous 
trial of Tilton vs. Beecher. The history of the bar in this 
country finds no parallel in professional public employments 
such as these falling to the lot of one man. 

In reviewing his own career he was wont to speak of the 
turn of events in the country's history that presented during 
his active professional life so many cases of far-reaching 
public importance and interest. In this sense fortune 
favored him. It is not for the writer to discuss the per- 
formance, by Mr. Evarts, of the tasks thus set for him; but 
this may be said: that each honorable and responsible em- 
ployment fell to him as the natural consequence of his ade- 
quate discharge of that which had preceded. 

If we were to look for the turning point in his career at 
which he received a general and permanent recognition from 
the profession and the public as a learned lawyer as well as a 
brilliant and skilful advocate, we should find it in his ap- 
pearance before the New York Court of Appeals in 1860, rep- 
resenting the State of New York in the Lemmon Slave Case. 
His title to knighthood was then established, and the pro- 
fession looked forward to him as the future leader and cham- 
pion to take the place of his elders when they were gone. 
His former chief, Mr. J. Prescott Hall, thus writes: "I 
have read your 'Lemmon' speech through twice and think 
it the best you ever made and perhaps the best you ever will 
make; but you must try to beat yourself." 

In the Supreme Court of the United States he was con- 
stantly employed in private causes of importance and often 
retained by the Government in the paramount questions 
that the exigencies of our Civil War brought for solution 
before that great tribunal. 



xii SPEECHES OF WILLIAM MAXTN-ELL EVARTS 

As a lawyer, Mr. Evarts's extraordinary intellectual gifts 
enabled him to grasp, with a readiness and power of ab- 
sorption and assimilation that excited the wonder and ad- 
miration of his contemporaries, all the essential and salient 
points of the most complicated cases upon the first interview 
with his client or his brother lawyer. Mr. Southmayd,* for 
many years his partner, himself a very great lawyer of that 
generation, was wont to speak of this power of ap])rehension, 
which would mentally anticipate and complete the situation 
before the narration of the facts was finished. The case had 
by that time been accurately discriminated and some great 
principle of law unerringly aj)plied. His other distinguished 
partner, Mr. Joseph H. Choate, whose name completed the 
title as it added to the fame of the great firm of Evarts, 
Southmayd & Choate, has spoken of him as "the quickest 
witted man I ever met on either side the water." 

The writer has heard Mr. Evarts speak of how he would go 
into a trial with Mr. Choate when the only opportunity he 
had had of any acquaintance with the case was in the walk 
from their office to the court room. In the tremendous 
pressure of a busy lawyer's laborious life those few moments 
were all that could be spared to the consideration of ordinary 
lawsuits, where the detailed preparation for trial had fallen 
of course into competent hands. But those few moments 
seem to have suflBced for effective service to his junior at the 
trial. 

He treated all his cases in a very large way; he made 
luminous the philosophy and science of jurisprudence in its 
application to the case in hand; he lifted the cause to a very 
high plane, and notably was this true in the Johnson im- 
peachment and the Beecher trial; by remarkable clearness of 
statement he disentangled the greatest confusion of facts and 
brought them into harmony with the fundamental principles 
upon which the contention of his cause rested; by apt al- 

* Charles F. Southmayd, 1824-1911. 



INTRODUCTION xiii 

lusion and illustration, by anecdote and often by a play of 
humor and fancy, his presentation of the driest case inter- 
ested the Court, as by his forceful eloquence he drove home 
the principles he advocated; while his unfailing courtesy 
and consideration, wholly without the taint of assumed 
superiority, won the admiration and affection of Bench and 
Bar. 

But hand in hand with these gifts went the instinct for 
thoroughness — thoroughness of preparation, thoroughness 
of presentation. It was not in his nature to rest content with 
one cogent, irrefragable point and by reiteration in various 
forms and from varying points of view place his dependence 
upon that and that alone; but, regardful of the maxim, 
"many men, many minds," he sought to convince by every 
honorable and fair suggestion of reason that might find 
lodgment and have a persuasive influence with the tribunal 
he addressed. Mr. O'Conor,* more often opposed to, 
than associated with, Mr. Evarts, once said to a would-be 
client, whose retainer he was for some reason unable to 
accept, "Go to Mr. Evarts; he will bring forward every 
'possible point, present every possible argument the case ad- 
mits of." 

Allusion to this trait recalls to the writer a characteristic 
remark of ]Mr. Evarts while he was preparing to argue in the 
Com-t of Appeals of New York the case in which he made his 
last appearance in any court. It was not unusual to see 
him, towards the close of a busy day of concentrated labor 
over a brief or an opinion, come from his own room and, 
going in to see one of his partners or sometimes sitting in the 
general oflSce, enter mto a conversational discussion of the 
subject that was on his mind. In the course of such a dis- 
cussion over this case {Post vs. Weil, now cited as a leading 
case) Mr. Evarts said, "Well, I have seven points, one for 
each judge." 

* Charles O'Conor, 1804-1884. 



xiv SPEECHES OF WILLL\:M MAXWELL EVARTS 

Thus, too, in the trial of cases, some bit of evidence that 
might seem trifling and wholly negligible, coming unob- 
served or unheeded into the testimony, was in his final argu- 
ment turned to great and telling effect. He seized upon it 
at once and discerned clearly its bearing on the main issue; 
and in his final presentation its effect was all the more force- 
ful for being skilfully brought from its hiding place in the 
great mass of testimony and its true character displayed in 
the bright light of his clear reason. 

His oral arguments were as thorough as his preparation of 
causes. His words of advice to a young lawyer, "Don't be 
content with a *good enough' argument," illustrate his own 
rule in the presentation of his causes. Thus in several cases, 
the subject matter of which has lost all shadow of present day 
interest, his arguments remain not only as models to emulate, 
though difficult of attainment, but in themselves of interest 
and instruction. In making a selection, therefore, of the 
speeches of Mr. Evarts which it might seem proper to in- 
clude within the covers of one book, we have not felt that, in 
the case of his legal arguments, any more restricted rule of 
choice need apply than that which we have endeavored to 
follow in those of another character. An inclusion of those 
of historic interest should not exclude all of those, the interest 
in which may be confined to the profession. 

But Mr. Evarts was more than a lawyer. With what may 
be regarded as an hereditary instinct for public service he 
very early manifested a zealous interest in political affairs. 
He was a devoted admirer and disciple of Mr. Webster, and 
to the last one of his ablest defenders. In a long forgotten 
weekly publication called "The New World," under the 
editorship of Park Benjamin, there appear in the issues of 
October 2 and October 16, 1841, two political articles from 
Mr. Evarts's pen entitled respectively, "Mr. Webster's 
Position " and " Mr. Tyler and The Whig Party." The first 
was in answer to the attacks upon Mr. Webster from a large 



INTRODUCTION xv 

body of the Whigs because of his remaining as Secretary of 
State in Tyler's Cabinet, and the second a review of the 
general political situation and of President Tyler's adequacy 
to meet it, as it was affected by the breaking apart of the 
two elements of the party. For this disruption of the party, 
the elevation to the Presidency of Mr. Tyler, through the 
death of President William Henry Harrison, was largely 
responsible. 

These articles, among the earliest of the young lawj'^er's 
essays at political discussion and interesting solely on this 
account, may appropriately find a place in this collection. 
Their style reminds one of the Letters of Junius, and one may 
safely conjecture a conscious or unconscious imitation, as a 
model, of this unknown writer. His own comments on these 
early efforts throw an interesting side light on their produc- 
tion and their effect so far as it concerned him. "I have 
sent you a copy," he writes to his friend, Richard H. Dana, 
Jr., under date of October 2, 1841, "of this week's 'New 
World ' as containing for its ' leader ' an article by me — I am 
tired of hearing ' Mr. Webster's Position' spoken of in the 
tone used in Whig circles here, and have written the paper 
con amore. It is as long as sixteen pages of common pam- 
phleteering and was written after 8 o'clock one evening and 
in the printer's hands next morning at 7, so that it can hardly 
be deemed an elaborate production. As I am proposing soon 
to make my pen venal, I am writing now for practice and 
facility and am not altogether displeased with this first at- 
tempt. If your own judgment should be favorable, suppose 
you do me the honor to submit it to your father's indulgent 
opinion." 

Again, on October 12, 1841, he writes, "I am obliged to 
your father for his friendly criticism on my fugitive article. 
. . . This week I have promised an article on Tyler, but 
as it must be ready early to-morrow morning and is as yet 
unwritten I am doubtful whether it appears." Whatever 



xvi SPEECHES OF ^VILLIA^I MAXWELL EVARTS 

may have been the judgment of the elder Dana, we may well 
suppose it to have been for the most part literary. How 
this young man's efforts impressed others, he with modest 
pride discloses to his friend Dana, when in January, 1842, he 
writes: "Professional business has claimed so nuich of my 
attention that my '})olitical pen' (which Professor Felton 
wrote Benjamin was one of 'the most powerful ones in the 
country') has been idle. During my late visit to Washing- 
ton, I had the honor of an interview (at his desire) with his Ex- 
cellency the Secretary of State, who, as Mr, Choate informed 
me, was delighted with my article. I am more amused than 
seriously gratified at the results of my aimless and casual 
efforts." "His Excellency the Secretary of State" was of 
course Daniel Webster and Mr. Choate was Rufus Choate, 
then occupying ]Mr. Webster's seat in the Senate. 

Mr. Evarts's "political pen" remained idle for the rest of 
his life; but in every discussion of public aft'airs his voice 
was heard where it might affect the course of public opinion. 

During the period following the Comj)romise Measures 
of 1850 and up to the election of Lincoln there was one 
dominant subject of either public or private discussion. We 
refer, of course, to the subject of slavery, its existence in 
the Southern States, the supremacy of its advocates in the 
councils of the Government, and their efforts to extend 
the institution throughout the whole country as a part of the 
national policy. 

. At the time of the passage of the Compromise measures, 
Mr. Evarts, then thirty-two years old, had attained such 
prominence that, at the great Union meeting at Castle 
Garden in New York, he was one of the speakers. The meet- 
ing was called together to sustain before the people the policy 
of the Government in the Compromise measures, and Mr. 
Evarts spoke in maintenance of the Constitutionality of the 
Fugitive Slave Law and in earnest appeal for obedience to 
its provisions by the people of the Northern States. This 



INTRODUCTION xVii 

** Castle Garden" speech, his first recorded public utterance, 
was, in a narrower sphere, as much a subject of discussion, 
as it bore upon his attitude towards the burning question of 
the day, as that much debated seventh of March speech of 
his great exemplar in the Senate. In the years that followed, 
the Castle Garden speech was brought forward against Mr. 
Evarts as evidence of a leaning in favor of slavery not to be 
expected and much to be deplored in one of his antecedents. 

The public mind could not reconcile an abhorrence of 
slavery as an institution with adherence to the Constitution 
and the Law, that recognized the institution as a necessary 
evil and supported the rights, under the Constitution, of slave 
owners, in the localities where the system of slavery pre- 
vailed. No man was ever more hostile to slavery than Mr. 
Evarts, throughout his life, and it perhaps was fortunate for 
a final estimate that the Castle Garden speech, unlike the 
seventh of March speech, was at the beginning and not at 
the end of a career. In the heated state of the public mind 
and conscience over this all-absorbing question of slavery it 
was perhaps natural that everyone who stood for the pres- 
ervation of the Union and the Constitution and the sanctity 
of law should be, though illogically and unjustly, suspected 
of a friendly complacency towards the institution of slavery 
or at least of indifference to its evils. But any doubt or 
confused notion of Mr. Evarts's attitude towards slavery 
was set at rest when he gave one fourth of his property to 
the Emigrant Aid Company in the "Kansas Crusade," 
when he spoke at the Broadway Tabernacle in 1856, and 
when he made his argument in the Lemmon Slave Case. 

The circumstances of Mr. Evarts's contribution to the 
cause of the Emigrant Aid Company is thus related by Mr. 
Eli Thayer in an account of a meeting of gentlemen at a 
private house in New York in 1855: "After my address, 
which occupied a little more than an hour, a young man, 
tall and thin, arose and began to speak as follows: 'Ever 



xviii SPEECHES OF WILLIAM MAXWELL EVARTS 

since my Castle Garden speech, you know I have been called 
a Hunker Whig. Now, what reason you had to suppose 
that such a man would care whether slavery were extended 
or restricted I do not know. Therefore I do not know your 
reasons for inviting me to attend this meeting. But you 
did invite me and I have come. I am glad that I am here 
and I thank you for calling me. I have heard many speeches, 
on many occasions, upon the slavery question; but never 
until now have I listened to any practical elucidation of the 
subject. Like thousands of others I have been waiting for 
an opportunity to contend successfully against slavery with- 
out violating the laws or sacrificing the Constitution and the 
Union. Such an opportunity is now presented. I rejoice 
in it and shall embrace it. Now, though I am called a 
Hunker Whig and though I am poor, for I am not worth four 
thousand dollars, I joyfully give my cheque to the Emigrant 
Aid Company for one thousand dollars.' This speaker was 
William M. Evarts." * 

No method of selection should properly exclude these 
earliest political speeches. They are as important and as 
interesting in their representative significance as those more 
elaborate productions when Mr. Evarts was the sole speaker 
of the evening before a crowded audience in Cooper Union, 
upon the invitation of prominent citizens of New York to 
give his views in public on the issues of the day. 

Mr. Evarts's repute as a man of public spirit, as a scholar 
and an orator soon brought to him invitations to deliver 
addresses, in the language of the day, "orations," at im- 
portant celebrations. Of these the first was delivered in 
1853 at the centenary of the Linonian Society at Yale, 
the last in 1888 at the dedication at Auburn of the statue of 
his political friend and leader, William H. Seward. 

Present day readers need to be reminded of the fame of 
the great debating societies at Yale College that flourished 

* A History of the Kansas Crusade, by Eli Thayer, p. 203. 



INTRODUCTION xix 

from the latter part of the eighteenth to the middle of the 
nineteenth century. They furnished to the youth of those 
generations who sought their education at Yale College a 
nursery and training ground for the development of those 
moral and intellectual faculties that best adapt a man to a 
position of influence and power in the community in which 
his lot is thrown. Doubtless, in the fuller and more com- 
plex life of our universities to-day there may be found, 
among the student activities, organizations that take the 
place and have the influence of these old debating societies. 
But it was with keen and unfeigned regret at the time that 
the older graduates of Yale saw the uninterrupted decline 
and final discontinuance of these institutions, beyond the 
power of all efforts to revive them. The place they filled 
in the college life of his day, and the purposes they were 
calculated to accomplish were thus described by Mr. Evarts, 
in this oration on "Public Life," in the following passage: 

"While, then, we greet the college as the gracious mother 
of our intellectual life, from whose full breasts we drew the 
nutriment of learning, it is in this Linonian Society that 
we, who have met for this centennial commemoration, found 
the playground and arena, the palestra, the forum, the 
agora, in which the new born vigor was exercised and trained. 
It was here that the faculties acquired were first applied, 
and here had the prelude and preparation for the public 
labors and conflicts of real life." 

These commemorative addresses, six in number, include, 
besides those mentioned above, the New England Society 
oration, entitled "The Heritage of the Pilgrims," delivered 
in 1854 before the New England Society of New York, his 
Eulogy on Chief Justice Chase delivered upon the invitation 
of the Alumni of Dartmouth College at the commencement 
of 1874, his centennial oration delivered at Philadelphia, 
July 4, 1876, and his oration at Newburgh, New York, in 
1883, on the invitation of the joint committee of Congress, 



XX SPEECHES OF WILLIAM MAXWELL EVARTS 

at the centennial of Washington's Headquarters at New- 
burgh. Thus the honor was awarded to him of dehvering 
the oration at the last, as well as at the first, of the series of 
national centennial celebrations of the Revolutionary period. 

These formal addresses were not mere exhibitions of 
rhetorical phrase making, but scholarly discourses, pregnant 
with the philosophy of history and of politics, clothed in 
stately English and inspired with a genuine love of his country 
and reverence for its institutions. 

Through a rare and very happy combination of faculties 
the fame of Mr. Evarts as an advocate and an orator was 
matched by his reputation as a wit. There is hardly a book 
of contemporaneous biography or reminiscences that does 
not contain some bright saying, some viot, some witticism of 
Mr. Evarts, and there were not infrequently attributed to 
him, as is always the case with such reputations, jests that 
on their face bore the stamp of counterfeit. With this 
gift, combined with a merry and spontaneous humor, he 
always found a welcome at public dinners either as presiding 
or as one of the principal speakers. Mr. Carter,* himself a 
great lawyer and orator, in a graceful and appreciative trib- 
ute to Mr. Evarts, thus spoke of this feature of his career: 

"In another field — and one of no small consequence — he 
was facile pri?icejps; I mean that of after-dinner speaking. 
He may be said to have created a revolution in that art. 
His brilliant wit, his command of language, his large ac- 
quaintance with men and things and his keen sense of humor 
made him a most captivating speaker on such occasions. 
And this seemed so easy in him that many others thought it 
was really easy, and he had many imitators, who, however, 
were not often so successful." 

An appreciative editorial in one of the leading journals at 
the time of Mr. Evarts's death thus speaks of these social 
gifts : 

* James Coolidge Carter, 1827-1905. 



INTRODUCTION xxi 

" He was not only a great lawyer, an able statesman and a 
great character, but he was a unique New Yorker. His was 
the wit, diamond-pointed, that sparkled without wounding. 
His was the humor as debonair as dry, and as genial as subtle. 
His was the power of epigram, antithesis or characterization 
that gave to thought the light for its entrance into the mind, 
and to fancy the barb that winged its course to the recesses of 
the imagination and to the centre of the heart. His was the 
anecdotal power that united the finality of culture with the 
simplicity of experience, and which gilded conversation with 
the sheen of gold, and gave to it the charm that made listen- 
ing a luxury, enjoyment contagious, imitation a failure, 
emulation a temerity and admiration spontaneous. And all 
this concurred with an involution and circumlocution of 
oratorical style that, whether natural or acquired, was alike 
the envy and despair of colleagues or of rivals. " * 

Of Mr. Evarts's "style" to which allusion is made by this 
sympathetic writer it may be said that as the printed page 
diminishes the force of the spoken word as uttered, so it 
magnifies into a fault a method and form of expression that 
was most effective as employed by Mr. Evarts. It is the 
spoken language of the man, aptly and often finely expressive 
of the thought behind it, that is to be found in the pages that 
follow. In those productions, which Mr. Evarts was wont 
to call his "set orations," and which were delivered from 
manuscript, where there was the opportunity for careful and 
critical preparation, is to be found the best and truest ex- 
amples of his "style," which may or may not meet the re- 
quirements of the best literary canons. One may find in the 
quaint words of Fuller where he speaks of Richard Hooker, 
the '* judicious" Hooker, an apt description of Mr. Evarts's 
style. The entertaining theologian Fuller writes thus: 
"His style was long and pithy, driving on a whole flock of 
several clauses, before he came to the close of a sentence; so 

* St. Clair McKelway. in thej"Brooklyn Eagle." 



xxii SPEECHES OF WILLIAM MAXWELL EVARTS 

that when the copiousness of his style met not with propor- 
tionable capacity in his auditors, it w^as unjustly censured for 
' perplexed, tedious and obscure.'" * 

Let us record here also the witty retort of Mr. Evarts to 
one who in good natured banter had twitted him on his long 
sentences. In 1879, being then Secretary of State, he pre- 
sided at the public dinner in New York tendered to Mr. 
Thomas Bailey Potter, one of the few members of parliament 
who had been, in England, staunch supporters of the north- 
ern side during the Civil War. Mr. Samuel D. Babcock, 
then president of the New York Chamber of Commerce, in 
closing his speech at the dinner, had thus expressed himself: 
"Let us hope, gentlemen, that if differences should arise in 
the future between Great Britain and the United States, 
men will be found like Mr. Potter and Secretary Evarts, who^ 
after a calm and dispassionate discussion, clothed though it be 
with sentences as long as the English language can supply, 
will arrive at an amicable settlement." 

Mr. Evarts, on rising to introduce the next speaker, 
began by saying that the English was a language the true 
efficacy of which the gentleman who last sat down did not 
seem to appreciate. Not only was it fine in quality but in 
quantity it was absolutely marvelous. What wonder then 
that a public servant should try to check the volubility of 
his countrymen by consuming large portions of it himself. 
He then added, "I don't wish that our guest should carry 
away with him a wrong impression in regard to this alleged 
fault. The only persons in this country who are opposed to 
long sentences are the criminal classes." 

Mr. Evarts's speeches, as we have seen, quite naturally 
classify themselves under these four divisions: professional 
arguments, political speeches, commemorative orations and 
occasional addresses, including in the last his after-dinner 
speeches. Any effort to make a selection must meet the 

* Fuller's Church History, IX, s. vii, 49, 53. 



INTRODUCTION xxiii 

hazard of omitting or including one or more as to which, for 
this or that consideration, another's judgment would apply 
a different rule. Many motives have had their influence 
upon the result and if the general and principal purpose of 
the publication is amply met it will suffer no serious abate- 
ment by any incidental errors of choice in minor instances. 
These arguments and speeches are gathered from many 
scattered sources, from newspapers and pamphlets and from 
separate publications of more permanent form, and have 
been thus brought together that they may be readily acces- 
sible, that they may serve to preserve the memory of Mr. 
Evarts and that they may be in a permanent form of pres- 
ervation themselves. The writer makes here his grateful 
acknowledgment for valuable aid received in the preparation 
of this work from Mrs. Graham B. Blaine, a granddaughter 
of Mr. Evarts. 

We have refrained in these introductory words from any 
strictly biographical statement of Mr. Evarts's career, con- 
tent with such suggestive allusions as occur in considering his 
many and diversified attainments. He was first and last 
the great lawyer and advocate; one who, as Pericles for 
Athens, had for his profession a "lover's enthusiasm." He 
found in its active and large employments ample scope for 
the widest exercise of his intellectual powers, and opportunity 
to exert a great moral influence in his day and generation, 
while the recognized relations that existed between the pro- 
fession and public discussion and public action afforded the 
occasion for an active and constant participation in this 
wider field of influence. It was within the ranks of the pro- 
fession that his close friendships were to be found, and from 
its ranks came the most informed and sincerest appreciation. 
If we look for some expression from him that may exhibit 
his personal relations, his personal feelings, towards the 
members of the profession that he loved and reverenced, we 
may find it in the closing words of his response at the public 



xxiv SPEECHES OF T\TLLIAM MAXWELL EVARTS 

dinner tendered him by the Bar of New York in 1868, at 
which Mr. O'Conor presided. In conchiding his speech on 
this occasion he says: 

"And, now, Mr. President, closing these observations, 
desultory and far too long, I beg to be permitted to say a 
word or two about the good fortune that has attended my life. 
I do not know that in the thirty years which have almost 
elapsed since, as a student, I came to your city, any man has 
ever done me an unkindness or an injustice; and if I could 
feel that I might say the same of my own conduct, — that I 
have never done an unkindness or an injustice to a brother 
in our profession — if I could say this, I should feel that I had 
in some degree rej)aid the great debt which I owe to you all. 

" But it seems to me as if I were indebted to others from the 
beginning to the end. I do not speak of how much I owe 
to my masters in the law school. Story and Greenleaf — but I 
may be permitted to say that no man can owe a greater debt 
to a teacher, a master, an example and a kind friend, than I 
owe to Daniel Lord, and I may be permitted to say, too, that 
no young man can be better aided in the early days of his 
profession than I was by Prescott Hall, my master and my 
friend. And my partners still about me- — my partners, never 
changed, but only added to in twenty-eight years of profes- 
sional life — they are present at this table, and your knowl- 
edge of them forbids and makes it unnecessary for me to speak 
of them. I recognize the debt to all — the constant obliga- 
tion; and when at last the seal shall be set to my life (until 
which we are admonished to call no man fortunate) I may 
well be deemed fortunate if any law student, any young 
lawyer or any dying veteran of the profession shall feel even 
to a moderate degree toward me as I do toward these my 
masters and my friends." 

We venture to add the answer to his wish in the sincere 
and fervent words of that other great lawyer, Mr. Carter, 
when he said of Mr. Evarts, "In his death a great light has 



INTRODUCTION xxv 

been extinguished, — no, not altogether extinguished. It 
will long continue to shine in his many noble utterances which 
history and literature will preserve; in the memory of the 
patriotic services which he rendered to his country; in the 
affectionate regard of a thousand friends, and in the bright 
example he set as a citizen, statesman and man." 

Sherman Evarts. 
Windsor, Vermont. 
February 6, 1918. 



PROFESSIONAL ARGUMENTS 



BRIEF AND ARGUMENT IN THE NEW YORK 
COURT OF APPEALS IN THE LEMMON SLAVE 
CASE 

NOTE 

In November, 1852, Jonathan Lemmon and Juliet Lemmon, his 
wife, citizens and residents of the State of Virginia, came to New 
York City by boat from Norfolk, Virginia, bringing with them 
eight negroes, who were in Virginia held as slaves and as the prop- 
erty of Mrs. Lemmon. 

Their ultimate destination was Texas where slavery was an in- 
stitution recognized by the laws of that State. It was their pur- 
pose to remain in the City of New York only for the short interval 
between their arrival and the departure from that port of a boat 
for Texas, upon which it was their intention to embark in the com- 
pletion of their journey. They lodged their slaves in a house in 
Carlisle Street, New York, where they were discovered by a negro 
named Louis Napoleon. He thereupon presented to the Hon. 
Elijah Paine, a judge of the Superior Court of the City of New 
York, his petition for a writ of Habeas Corpus, for the production 
before him of the eight negroes, that the legality of their detention 
under restraint might be judicially determined. The writ was 
issued November 6, 1852, and on the return of the writ an answer 
was interposed setting up the ownership of the eight negroes by 
Mrs. Lemmon under the laws of Virginia and that their sojourn in 
New York was in transitu merely, on the way to another slavehold- 
ing State, with no purpose or intent of remaining within the juris- 
diction of the State of New York any longer than the exigencies of 
the journey from Virginia to Texas by the route taken required. 
To this return to the writ the petitioner interposed a general demur- 
rer, stating that the facts set forth did not constitute a legal cause 
for the restraint of the hberty of the negroes. 

Upon the questions of law thus raised the case was heard. E. 
D. Culver and John Jay appeared for the petitioner, while H. D. 
Lapaugh and Henry L. Clinton represented the respondent. Judge 

s 



4 SPEECHES OF WILLIAIVI MAXWELL EVARTS 

Paine decided the case in favor of the petitioner and by final order, 
dated November 13, 1852, gave the negroes their freedom. The 
case is fully reported in New York Superior Court Reports, 5 Sand- 
ford, 681. 

Immediately upon the rendering of this decision the respondent 
sued out a writ of certiorari to bring the case up for review to the 
general term of the Supreme Court. 

The decision of Judge Paine excited universal comment in tones 
of admiration or execration as the sympathies and judgments of 
people inclined to one side or the other. The Governor of Vir- 
ginia, by authority of its Legislature, directed the Attorney-General 
of the State to prosecute the appeal in connection with such counsel 
as he might employ. Under this authority Mr. Charles O'Conor 
was engaged as counsel in behalf of the State of Virginia. In 1855, 
under similar action of the Legislature of New York, the Governor 
of that State appointed E. D. Culver and Joseph Blunt as counsel 
to be associated with Ogden Hoffman, then Attorney-General of 
New York, to defend the interests of the State on the appeal pros- 
ecuted by the State of Virginia. On the death of Mr. Hoffman in 
1856, the Governor appointed Mr. Evarts, in his place, to represent 
the State of New York on the appeal. The case was argued before 
the general term of the Supreme Court in December, 1857, and the 
decision of the Court below was aflBrmed, Justice Roosevelt dissent- 
ing. The case is reported in New York Supreme Court Reports, 
26 Barbour, 270. An appeal was taken to the Court of Appeals. 
The case was argued in that Court on January 24, 1860, and follow- 
ing days, by Mr. O'Conor for the appellants, and by Mr. Joseph 
Blunt and Mr. Evarts for the respondent. In March, 1860, 
the Court affirmed the decisions below. Opinions were delivered 
for afl&rmance by Judge Denio and Mr. Justice Wright, Judge 
Davies and Justices Bacon and Welles concurring. Chief Judge 
Comstock and Mr. Justice Gierke dissented, an opinion being de- 
livered by Mr. Justice Gierke for reversal of the Supreme Court. 
Judge Selden expressed no opinion. The case is reported in 20 
New York Court of Appeals Reports, page 562. Mr. Evarts sub- 
mitted the following points and delivered the argument that fol- 
lows. 



THE LEMMON SLAVE CASE 

POINTS* 

First Point. — ^The writ of Habeas Corpus belongs of right 
to every person restrained of liberty within this State, under 
any pretense whatsoever, unless by certain judicial process of 
Federal or State authority. 

2 Rev. Stat., p. 563, No. 21. 

This right is absolute, (1) against legislative invasion, and 
(2) against judicial discretion. 

Cons., Art. 1, No. 4. 

2 Rev. Stat., p. 565, No. 31. 

In behalf of a human being, restrained of liberty within 
this State, the writ, hy a legal necessity, must issue. 

The office of the writ is to enlarge the person in whose 
behalf it issues, unless legal cause be shown for the restraint 
of liberty or its continuation; and enlargement of liberty, 
unless such cause to the contrary be shown, flows from the 
writ by the same legal necessity that required the writ to be 
issued. 

1 Rev. Stat. 567, No. 39. 

Second Point. — The whole question of the case, then, is, 
does the relation of slave-owner and slave, which subsisted 
in Virginia between Mrs. Lemmon and these persons while 
there, attend upon them while commorant within this 
State, in the course of travel from Virginia to Texas, so as to 
furnish legal cause for the restraint of liberty complained of, 
and so as to compel the authority and power of this State to 
sanction and maintain such restraint of liberty. 

* On the argument of the case Mr. Evarts submitted these Points, stating 
that they were intended to be taken in connection with those of his associate, 
Mr. Blunt, and that he had not thought it necessary to repeat the citations to 
be found on Mr. Blunt's points, and on which they both relied. 

5 



6 SPEECHES OF WILLIAM I^IAXWELL EVARTS 

I. Legal cause of restraint can be none other than an 
authority to maintain the restraint which has the force of 
law within this State. 

Nothing has, or can claim, the authority of law within this 
State, unless it proceeds — 

(A) From the sovereignty of the State, and is found in the 
Constitution or Statutes of the State, or in its unwritten 
common (or customary) law; or — 

(B) From the Federal Government, whose Constitution 
and Statutes have the force of law within this State. 

So far as the Law of Nations has force within this State, 
and so far as "by comity," the laws of other sovereignties 
have force within this State, they derive their efficacy, not 
from their own vigor, but by administration as a part of the 
law of this State. 

Story Confl. Laws, Nos. 18, 20, 23, 25, 29, 33, 35, 37, 38. 

Bajik of Augusta vs. Earle, 13 Pet. 519, 589. 

Dalrymple vs. Dalryinple, 2 Hagg. Consist. Rep. 59. 

Dred Scott vs. Sanford, 19 How. 4C0-1, 486-7. 

II. The Constitution of the United States and the Federal 
Statutes give no law on the subject. 

The Federal Constitution and legislation under it have, in 
principle and theory, no concern with the domestic institu- 
tions, the social basis, the social relations, the civil condi- 
tions, which obtain within the several States. 

The actual exceptions are special and limited, and prove 
the rule. They are — 

1. A reference to the civil conditions obtaining within the 
States, to furnish an artificial enumeration of persons as the 
basis of Federal Representation and direct taxation, distribu- 
tively between the States. 

2. A reference to the political rights of suffrage within the 
States as, respectively, supplying the basis of the Federal 
suffrage therein. 



THE LEMMON SLAVE CASE 7 

3. A provision securing to the citizens of every State 
within every other the privileges and immunities (whatever 
they may be) accorded in each to its own citizens. 

4. A provision preventing the laws or regulations of any 
State governing the civil condition of persons within it, from 
operating upon the condition of persons "held to service or 
labor in one State, under the laws thereof, escaping into 
another." 

None of these provisions, in terms or by any intendment, 
support the right of the slave-owner in his own State or in 
any other State, except the last. This, by its terms, is 
limited to its special case, and necessarily excludes Federal 
intervention in every other. 

Const. U. S., Art. 1, sec. 2, subd. 1 and 3. 

Art, IV, sec. 2, subd. 1 and 3. 

Laws of Slave States, and of Free States, on Slavery. 

Ex parte Simmons, 4 W. C. C. R. 396. 

Jones vs. Van Zandt, 2 McLean, 597. 

Groves vs. Slaughter, 15 Peters, 506, 508-510. 

Prigg vs. Pejin, 16 Peters, 611-612, 622-3-5. 

Strader vs. Graham, 10 How. 82, 93. 

New York vs. Miln, 11 Peters, 136. 

Dred Scott vs. Sanford, 19 How. 393. 

Ch. J. 452. 

Nelson, J. 459, 461. 

Campbell, J. 508-509, 516-17. 
The clauses of the Constitution of the United States 
touching the commercial power of the Federal Government 
have no effect, directly or indirectly, upon the question under 
consideration. 

Cons. IT. S., Art. 1, sec. 8, subd. 3. 

Cons. U. S., Art. 1, sec. 9, subd. 1, 5. 

The Passenger Cases, 7 How. 283. 

Groves vs. Slaughter, ut supra. 

New York vs. Miln, ut supra. 



8 SPEECHES OF WILLIAM MAXWELL EVARTS 

III. The common law of this State permits the existence 
of slavery in no case within its limits. 

Cons., Art. 1, No. 17. 

Sommersetts Case, 20 How. St. Trials, 79. 

Knight vs. WedderburUy Id. No. 2. 

Forbes vs. Cochrane, 2 B. & C. 448. 

Shanley vs. Harvey, 2 Eden, 126. 

The Slave Grace, 2 Hagg. Adm. 118, 104. 

Story Confl. Laws, No. 96. 

Co. Litt. 124 b. 

IV. The statute law of this State effects a universal pro- 
scription and prohibition of the condition of slavery within 
the limits of the State. 

1 R. St., p. 656, No. 1. — "No person held as a slave shall 
be imported, introduced or brought into this State, on any 
pretence whatever, except in the cases hereinafter specified. 
Every such person shall be free. Every person held as a 
slave, who hath been introduced or brought in this State 
contrary to the laws in force at the time, shall be free." 

No. 16. — "Every person born within this State, whether 
white or colored, is free; every person who shall hereafter be 
born within the State, shall be free; and every person brought 
into this State as a slave, except as authorized by this title, 
shall be free." 

2 R. St., p. 664, No. 28. 

Laws 1857, p. 797. 

Dred Scott vs. Sanford, 19 How. 591-595. 

Third Point. — It remains only to be considered whether, 
under the principle of the Law of Nations, as governing the 
intercourse of friendly States, and as adopted and incor- 
porated into the administration of our municipal law, comity 
requires the recognition and support of the relation of slave- 
owner and slave between strangers passing through our 
territory, notwithstanding the absolute policy and compre- 



THE LEMMON SLAVE CASE 

hensive legislation which prohibit that relation and render 
the civil relation of slavery impossible in our own society. 

The comity, it is to be observed, under inquiry, is (1) of 
the State and not of the Court, which latter has no authority 
to exercise comity in behalf of the State, but only a judicial 
power of determining whether the main policy and actual 
legislation of the State exhibit the comity inquired of; and 
(2) whether the comity extends to yielding the affirmative 
aid of the State to maintain the mastery of the slave-owner 
and the subjection of the slave. 

Story Confl. Laws, No. 38. 

Bk. Augusta vs. Earle, 13 Pet. 589. 

Dred Scott vs. Sanford, 19 How. 591. 
I. The principles, policy, sentiments, public reason and 
conscience, and authoritative will of the State sovereignty, 
as such, have been expressed in the most authentic form, and 
with the most distinct meaning, that slavery, whencesoever 
it comes, and by whatsoever casual access, or for whatsoever 
transient stay, shall not be tolerated upon our soil. 
That the particular case of slavery during transit has not 
escaped the intent or effect of the legislation on the subject, 
appears in the express permission once accorded to it, and 
the subsequent abrogation of such permission. 

1 Rev. St., Part 1, ch. XX, Tit. 7, Nos. 6, 7. 

Repealing Act, Laws 1841, ch. 247. 
Upon such a declaration of the principles and sentiments 
of the State, through its Legislature, there is no opportunity 
or scope for judicial doubt or determination. 

Story Confl. Laws, Nos. 36, 37, 23, 24. 

Vattel, p. 1, Nos. 1, 2. 

11. But, were such manifest enactment of the sovereign 

will in the premises wanting, as matter of general reason and 

universal authority, the status of slavery is never upheld in 

the case of strangers, resident or in transit, when the domestic 



10 SPEECHES OF WILLIAM MAXWELL EVARTS 

laws reject and suppress such status as a civil condition or 
social relation. 

(A) The same reasons of justice and policy which forbid 
the sanction of law and the aid of public force to the pro- 
scribed status among our own population, forbid them in the 
case of strangers within our territory. 

(B) The statvs of slavery is not a natural relation, but is 
contrary to nature, and at every moment it subsists, it 
is an ever new and active violation of the law of nature. 
Of this no more explicit or unequivocal statement can be 
framed than is to be found in the Constitution of the State 
of Virginia. Thus, the first article of the Bill of Rights of 
that Constitution declares: 

"That all men are by nature equally free and independent, 
and have certain inherent rights, of which, when they enter 
into a state of society, they cannot by any compact deprive 
or divest their posterity; namely, the enjoj^ment of life and 
liberty, with the means of acquiring and possessing property, 
and pursuing and obtaining happiness and safety." 

It originates in mere predominance of phj^sical force, and 
is continued by mere predominance of social force or mu- 
nicipal law. Whenever and wherever the physical force in 
the one stage, or the social force or municipal law in the 
other stage, fails, the status falls, for it has nothing to rest 
upon. 

To continue and defend the status, then, within our terri- 
tory, the stranger must appeal to some municipal law. He 
has brought with him no sj^stem of municipal law to be a 
weapon and a shield to this status; he finds no such system 
here. His appeal to force against nature, to law against 
justice, is vain, and his captive is free. 

(C) The Law of Nations, built upon the law of nature, 
has adopted this same view of the status of slavery, as resting 
on force against right, and finding no support outside of the 
jurisdiction of the municipal law which establishes it. 



THE LEMMON SLA\^ CASE 11 

(D) A State proscribing the status of slavery in its domes- 
tic system, has no apparatus, either of law or of force, to 
maintain the relation between strangers. It has no code 
of the slave-owner's rights or of the slave's submission, no 
processes for the enforcement of either, no rules of evidence 
or adjudication in the premises, no guard-houses, prisons, or 
whipping-posts to uphold the slave-owner's power and crush 
the slave's resistance. But a comity which should recognize 
a status that can subsist only by force, and yet refuse the 
force to sustain it, is illusory. If we recognize the fragment 
of slavery imported by the stranger, we must adopt the 
fabric of which it is a fragment and from which it derives 
its vitality. 

If the slave be eloigned by fraud or force, the owner must 
have replevin for him or trover for his value. 

If a creditor obtain a foreign attachment against the 
slave-owner, the sheriff must seize and sell the slaves. 

If the owner die, the surrogate must administer the slave 
as assets. 

If the slave give birth to offspring, we have a native-born 
slave. 

If the owner, enforcing obedience to his caprices, maim or 
slay his slave, we must admit the status as a plea in bar to 
the public justice. 

If the slave be tried for crime, upon his owner's complaint, 
the testimony of his fellow-slaves must be excluded. 

If the slave be imprisoned or executed for crime, the value 
taken by the State must be made good to the owner, as for 
"private property taken for public use." 

Everything or nothing, is the demand from our comity; 
everything or nothing, must be our answer. 

(E) The rule of the Law of Nations which permits the 
transit of strangers and their property through a friendly 
State does not require our laws to uphold the relation of 
slave-owner and slave between strangers. 



1^ SPEECHES OF WILLIAM MAXWELL EVARTS 

By the Law of Nations, men are not the subject of prop- 
erty. 

By the Law of Nations, the municipal law which makes 
men the subject of property, is limited with the power to 
enforce itself, that is by its territorial jurisdiction. 

B}^ the Law of Nations, then, the strangers stand upon 
our soil in their natural relations as men, their artificial 
relation being absolutely terminated. 

The Antelope, 10 Wheat. 120, 121, and cases ut supra. 

(F) The principle of the law of nations which attributes to 
the law of the domicil the power to fix the civil status of 
persons, does not require our laws to uphold, withm our own 
territory, the relation of slave-owner and slave between 
strangers. 

The principle only requires us (1) to recognize the con- 
sequences in reference to subjects within our own jurisdic- 
tion (so far as may be done without prejudice to domestic 
interests), of the status existing abroad; and (2) where the 
status itself is brought within our limits and is here permis- 
sible as a domestic status, to recognize the foreign law as an 
authentic origin and support of the actual status. 

It is thus that marriage contracted in a foreign domicil, 
according to the municipal law there, will be maintained as 
a continuing marriage here, with such traits as belong to that 
relation here; yet, incestuous marriage or polygamy, lawful 
in the foreign domicil, cannot be held as a lawful continuing 
relation here. 

Story Confl. Laws, Nos. 51, 51, a., 89, 113, 114, 96, 104, 
620, 624. 

(G) This free and sovereign State, in determining to which 
of two eternal laws it will by comity add the vigor of its 
adoption and administration within its territory, viz., a 
foreign municipal law of force against right, or the law of 
nations, conformed to its own domestic policy, under the 



THE LEMMON SLAVE CASE 13 

same impulse which has purged its own system of the odious 
and violent injustice of slavery, will prefer the Law of Na- 
tions to the law of Virginia, and set the slave free. 

Impius et crudelis judicandus est, qui libertati non favet. 
Nostra jura in omni casu libertati dant favorem. 
Co. Litt. ut supra. 

ARGUMENT 

If the Court please: The question brought originally under 
judicial examination and for practical determination was 
an interesting and important one, as it respected the liberty 
of the persons whose fate was to be determined, under our law, 
by our jurisprudence, and by the judgment of our Courts. 
Their number was considerable; and ever in enlightened 
communities, there is no question so important as that which 
touches the liberty of man — in a free country, important 
that the full measure of that liberty shall not be unjustly 
and unlawfully circumscribed, and in a despotic country, 
or in a country where slavery exists, important that the 
poor remnant of that liberty may not be still more abridged. 
Therefore, that imprisonment should continue an hour 
longer than it ought by law, or that there should be con- 
straint of limb or voice that the law does not allow, is ever a 
consideration that should call oflF courts of justice from the 
ordinary deliberations on matters of property, however 
great, until this question be determined, and this great 
wrong, if it be one, be redressed. But when the question of 
liberty is presented in the persons not only of so many, and 
not only for their lives, but for the whole stream of their 
posterity forever, I apprehend that no court of justice 
(though limiting the gravity of this question to that of the 
fate of these eight persons and their posterity), ever had 
occasion to consider a graver question of human liberty, or 
ever to be more careful that they should not, by an erring 
judgment, determine the doom of these people forever. 



14 SPEECHES OF WILLIAM MAX^^^ELL EVARTS 

The question is here, and it is not to be evaded. Whatever 
is done concerning the future of these persons, is done by the 
law of New York, imposed by her own State authority, or 
by the law of New York, resting upon and imposed by the 
paramount authority of the Federal Government. What- 
ever of doubt, of difficulty there may be, whatever of obscur- 
ity or uncertainty there may be, on this question, the deter- 
mination of this Court, as that of last resort in this State, 
finally impresses the right, the sanction, the force, that are 
necessary, and thus establishes, continues, or permits the 
slavery of these men and women. 

Now, beyond controversy, as it is the duty of an advocate, 
so much more is it the duty of a Court, when a legal question, 
within legal limits is to be disposed of, to meet that (iuestion 
and determine it, as a juridical inquiry; and when the respon- 
sibilities of the judge and of the advocate are discharged, if 
the law drives into slavery these unfortunate appellants to 
your judgment, then, as servants of the law, you are ac- 
quitted. The ministers of justice do not always perform an 
agreeable duty. But, every consideration drawn from 
general jurisprudence, drawn from the nature of man, drawn 
from the immutable qualities of right and wrong, may be 
rightfully invoked in such an inquiry. Unless we live under 
a government that has renounced all these principles, that, 
on inducements of policy, of interest, or of whatever perverse 
influence has guided the public councils, stands upon a 
denial of natural right, upon the overthrow of general jus- 
tice, and has established the public policy of injustice and 
oppression; unless the Court sits under a government that 
has avowed and maintained, and calls upon it to avow and 
maintain such a desertion of common right and natural 
justice, then, all arguments, and all illustrations that bring 
the judgment of a free Court of a free people to determine 
what their law is, and how it should be administered, are, in 
this inquiry, pertinent and appropriate. 



THE LEMMON SLAVE CASE 15 

But, if the Court please, the magnitude of this question 
is not limited to its pressure upon the liberty of the particu- 
lar persons whose case is before the Court. As a part (and 
a part not to be evaded) of the consideration and determina- 
tion, both in the legislative councils and in the courts of 
judicature, of the nation, and of the separate States, of the 
question that grows out of the existence in this country, in 
slavery, of negroes and their descendants, the present in- 
quiry attracts great public attention. 

Beyond the status of domestic slavery, as a local institution 
— established, administered, construed and defended in and 
by the States, w^hich, under our Federal system maintain it 
— three forms of question will obtrude themselves on public 
attention, and cannot be avoided. The one is — What is 
the power and authority of the Governments of the States 
that continue and maintain the institution of slavery, in 
respect of the free citizens or free inhabitants of this country, 
to protect by their exclusion, or by their control while 
within these communities, this institution of slavery, against 
violent, against legal, against moral, against religious, against 
social influences, that may disintegrate and destroy it.^* 
This right, asserted to the extent of absolute control, upon 
the necessity of self-preservation, has never been permitted 
to be the subject of calm, judicial inquiry within the States 
that support slavery. Whether free black citizens, or free 
black inhabitants (if they be not citizens), of the free States 
of the Union, shall be permitted in their pursuits of naviga- 
tion or otherwise, to come within the territory of a slave- 
holding State; whether white mechanics, merchants, land- 
owners, whether teachers and preachers, free citizens of the 
United States, shall be permitted within the slaveholding 
States to establish their residence permanently or tempo- 
rarily, and pursue their vocations ; or whether the institution 
of slavery, of domestic authority, shall have the power to 
subjugate the free people of the country, morally, socially, 



16 SPEECHES OF WILLIAM MAXWELL EVARTS 

and politically, in order that the slaves may be held in 
personal bondage — these are questions that are exhibiting 
themselves in a form the most significant and important in 
various parts of this country. It has never yet been per- 
mitted in the slaveholding States, that judicial inquiry 
should be instituted and prosecuted, to the result of a legal 
determination of these questions. 

Another most important, and in the public mind most 
absorbing, political topic, touches the footing of this domestic 
institution of slavery in, and in respect to, the territories of the 
United States, that are protected by no government or laws 
except those of the Federal Union. This question, agitated 
in the public councils, agitated in the popular mind, and 
discussed to a certain extent in the Supreme Court of the 
United States, is one, opinions and determinations upon 
which are supposed to have an important bearing upon the 
third and last remaining inquiry connected with the general 
subject. And that is, what is the legal position of the domes- 
tic institution of slavery, as existing in the slave States, in 
regard to slaves and their owners, when brought within the 
free States, that are governed by their own constitutions 
and laws, expounded and administered by their own courts? 
That is the question now before your honors; and that 
question concerns what is of more vital importance to a po- 
litical community than anything else, its sovereignty. It 
touches not only this question of sovereignty, vital to the 
existence of an independent community, but sovereignty in 
its most central point — that of the control of the civil and 
social condition of persons within its borders. For it may 
be very well understood that if a sovereign State has not the 
power of determining the political, the civil, the social, the 
actual condition of persons within its borders, it is because 
some other power has that control; and how it can be ad- 
mitted that a foreign government, a foreign jurisprudence, a 
foreign social condition, can intrude itself into an independ- 



THE LEMMON SLAVE CASE 17 

ent State, and establish for all time, or for any time, for 
some persons, or for one person, that condition within the 
State into which the intrusion is made; how this admis- 
sion can consist with the fundamental idea of the sover- 
eignty, or of the separateness of a political community, it 
passes my intelligence to comprehend. 

But, upon the view of the learned counsel who sustains 
the pretensions of the State of Virginia, that State either by 
its own authority, or by the aid of the Government of the 
United States, has something to say concerning the legal 
condition of persons within this State. The pretension that 
by the paramount dominion of the Federal Constitution 
we are bound to admit within our borders the institution of 
slavery, is a claim which, in my judgment, permits of no 
limitation whatever, of time or of circumstance. It pre- 
sents, therefore, a question of the first importance. If it 
were presented to you as merely a question of comity, to 
which you were obliged by your sense of what is fitting and 
possible, under the recognized will and authority of our 
own Legislature, why, although the public mind might be 
awakened, the proposition would not be so alarming as, that 
we are controlled in this matter, not by any judgment of our 
own as to what is proper, or fitting, or hospitable, but are 
bound by a superior authority, and to results to which we 
can put no limits. 

Now, if the Court please, it will be found that the very 
general view, which has been suggested by the counsel for 
the appellants here, of their claim respecting obligations 
and duties on our own part, serves no good purpose what- 
ever, but tends to withdraw the attention of the Court from 
the real subject of judicial inquiry. What is the subject of 
the present judicial inquiry, and how does it arise .-^ 

Within this State, and within the limits of the City of 
New York, were found eight men and women of color; and 
it was alleged, in such authentic form as our statutes require, 



18 SPEECHES OF WILLIAM MAXWELL EVARTS 

to our accredited judicial officer, that these eight persons 
were restrained of their liberty. What of that? What is 
it that institutes such an inquiry, and what is the point to 
be disposed of when such an inquiry is raised? The inquiry 
is instituted under our statute of Habeas Corpus, one of the 
main guards and protections of our liberty. For the 
words "liberty" and "slavery" — which we may get so used 
to as to think there is not much difference between them, 
except that they suggest matters of jurisprudential con- 
sideration as to the limits and extent of the one and the 
other — liberty and slavery, as civil conditions, are practically 
nothing more nor less than the establishment of laws, and 
the methods provided for their enforcement, to define and 
protect the one institution and the other. And, when you 
look for the liberty that the people of New York enjoy, you 
find it in their laws and in their system of government. You 
find their political liberty in the share that they have in the 
election and change of all persons that form and administer 
their government. You find their civil liberty, as matter of 
private and personal right, in the guaranties of the Constitu- 
tion, in the methods of the public administration of justice, 
in the trial by jury, in the Habeas Corpus; and you may have 
all the fanciful notions of exemption from bodily restraint 
in the world, yet if you do not have the Habeas Corpus act or 
some equivalent mode of attracting the public eye and con- 
science in administering the law, to the condition of people 
who are restrained of their liberty, you have no personal 
liberty, for you have no efficient mode of vindicating and 
defending it. 

What does our Habeas Corpus act require, first, in respect 
to the institution of the investigation, when it shall be al- 
leged to a judicial officer that any person within the State is 
restrained of his liberty? Why, it creates an absolute legal 
necessity that the question of fact and of right should at once 
be withdrawn from the personal or forcible control which 



THE LEMMON SLAVE CASE 19 

exists, and be transferred instantly and completely to the 
actual and legal control of the State. That is the Habeas 
Corpus act, that the question of the restraint of a human 
being in this State, upon any allegation that it exists in 
fact, should be at once rescued from the determination of 
force and personal control, and made a question of the State's 
maintaining the restraint. From that time, in the theory 
of the law, the restraint, in fact, cannot continue a moment, 
but by its maintenance by the Imv of the State, enforced and 
supported by the power of the State. 

So essential, in a free State, is this practical form of sus- 
taining personal liberty, that it is protected in a way and 
with a vigor that no other right whatever is protected, or, 
consistently with some other general and necessary principles 
is supposed to be possibly capable of protection. The right 
to the writ of Habeas Corpus is protected against invasion 
from the legislative power of the State, under the Constitu- 
tion; a protection which it shares with various other private 
rights. But this writ as a matter of judicial administration, 
is put upon a footing on which the exercise of no other 
judicial procedure whatever is put — that is, upon an absolute 
legal necessity that, upon suggestion, the writ shall issue. 
The judge to whom application is made has no discretion 
to withhold the writ; if he refuses it, he exposes himself to 
fine, as well as to all the consequences of dereliction of ab- 
solute official duty. 

Why is this.'* It is to secure, as matter of necessary practical 
result, that, whatever the future progress of the inquiry and 
its final determination shall be, the condition of personal and 
forcible restraint shall not continue one moment, but that, 
on the fundamental basis of this universal principle of free 
governments — that whatever is rightly done, is rightly done 
by law — the transfer shall immediately, completely and 
irresistibly be made from the private force that accompanied 
the actual restraint, into the region of law and judicial 



20 SPEECHES OF WILLIAM MAXWELL EVARTS 

determination, and from that moment, either the restraint 
ceases or the law continues it and compels it. 

(The Court took a recess.) 

I have said, if the Court please, that the policy of our law 
in support of personal liberty, had seen fit to devise a proc- 
ess whereby any actual restraint upon a person within this 
State shall be immediately changed, in fact, from the re- 
straint by private force into the restraint of the law, and by 
the public force; that thereafter the law restrained, and, by 
its authority alone, was any continued deprivation of liberty 
possible. I have said that this process was the important 
practical and effectual support of liberty without which lib- 
erty might remain as a name, and despotism exist as a 
system. 

Am I wrong in claiming this efficient agencj^ for the writ 
of Habeas Corpus, and in attributing to it when issued, the 
consequences I have suggested.^ The personal liberty of the 
people of this State might doubtless have been left, in the 
first instance, to their own protection, or for them to find, 
by ordinary remedies, redress for its infraction. Thus it 
might have been left to a person held in bondage or under 
restraint in this State, to relieve himself by force if he could, 
and then in an action to recover damages for false imprison- 
ment. This would be so if the Habeas Corpus act were not 
in force, and this contest of private force would be deter- 
mined by superior strength as to who should obtain the 
victory. 

The distinctive trait of the Habeas Corpus act is that it 
will not tolerate this "let alone'''' policy — that it will not 
permit the will or the power of prince or magistrate, or pub- 
lic officer, or private person to have sway, but always and 
only the power of the law — that it will take an active part in 
the protection and defence of liberty, and that the existence 



THE LEMMON SLAVE CASE ^1 

of the fact of restraint shall be the only prerequisite to re- 
move the question from this region of force and submission 
into the public jurisdiction of the law. 

If this be so, and no one can deny that it is so, from the 
moment the writ of Habeas Corpus was issued in this case, 
if these eight persons are held in this State for any period, 
brief or permanent, in slavery, or if they are sent away from 
this State into slavery, it is done by the law of the State of 
New York, and by it alone. For the private dominion of 
Jonathan and Juliet Lemmon over these persons has been 
removed by the writ of Habeas Corpus, and they stand in 
this court for its judgment and control, as the law shall 
award. The process once set in motion, there is no escape 
from its regular procedure and its final result, and the 
statute permits no answer that shall continue the restraint, 
unless it shall disclose some cause in law suflBcient. 

Now, what is answered to the exigency of this writ.^* The 
petition for the writ alleges that these persons "were, and 
each of them was, yesterday confined and restrained of their 
liberty on board the steamer, Richmond City, or City of 
Richinond, so called, in the harbor of New York, and taken 
therefrom last night, and are now confined in house No. 5 
Carlisle street in New York, and that they are not committed 
or detained by virtue of any process issued by any court 
of the United States, or by any judge thereof, nor are they 
committed or detained by virtue of the final judgment or 
decree of any competent tribunal of civil or criminal juris- 
diction, or by virtue of any execution issued upon such judg- 
ment or decree." The supposed cause of restraint is then 
set forth by the petitioner, but as the return states it, we 
need not consider the charges of the petition in this behalf. 
The answer gives as legal reason for holding them in the re- 
straint thus admitted to exist, that in the State of Virginia, 
the respondents, Jonathan and Juliet Lemmon, being there 
residents and citizens, these eight persons were their slaves; 



22 SPEECHES OF WILLIAM MAXWELL EVARTS 

that they, planning an emigration from Virginia to Texas, 
where the institution of slavery, equivalent to that under the 
laws of Virginia, existed, took passage in a steamer to the 
city of New York and there landed, awaiting the commence- 
ment of a new voyage, that should carry them to Texas; 
that their residence or being in the State of New York was as 
part of that transit, and with no other plan or design in re- 
gard to their remaining except to complete that proposed 
voyage from New York to Texas. And they claim that the 
restraint exercised is justified under the laws of New York, 
by reason of the facts they have stated. That is the case, 
and that being the case, it is for the court to determine 
whether by the laws of New York, that is legal cause of re- 
straint; and if it be, to give the whole power of the law and of 
the State of New York to maintain that restraint. The 
statute provides that upon the return made to the writ 
"the court or officer before whom the party shall be brought 
on such writ of Habeas Corpus, shall immediately after the 
return thereof, proceed to examine into the facts contained 
in such return, and into the cause of the confinement or re- 
straint of such party. If no legal cause be shown for such im- 
prisonment or restraint, or for the continuation thereof, 
such court or officer shall discharge such party from the 
custody or restraint under which he is held." 

The necessary result of this procedure, introduced by the 
writ of Habeas Corpus, is thus shown to be the discharge of 
these persons from the control under which they are found, 
unless some legal cause shall have, bj' the return, been shown 
for the continuance of the restraint complained of. The 
only question, then, was, and is, whether the relation of 
slavery (as described in terms in the return), existing in 
Virginia, and existing conformably to the laws of Virginia, 
is a cause for the restraint by our law, of these persons under 
the dominion of their owners as slaves in New York, during 
a brief or other stay, under the circumstances detailed in the 



THE LEMMON SLAVE CASE 23 

return, and so as to compel the authority of our State to be 
actively exerted to maintain and continue such restraint of 
liberty. 

We are first, then, brought to the inquiry of what a legal 
cause of restraint is. It is, I take it, an identical proposition 
to say, that legal cause of restraint can be none other than 
an authority to maintain the restraint which has the force 
of law within this State. From whatever source this 
authority of law is derived — whether it be directly from 
the State legislation, or is found in the unwritten common 
(or customary) law of the State itself, or whether it be from 
the Federal Government, whose Constitution and statutes 
have as perfect authority within this State, as laws origin- 
ating by State enactment, or by the adoption for the time 
being under the principles of comity, or for whatever reason, 
of a foreign system of law (as a fragment and casually, if you 
please), it must have the compulsory force of law in this 
State or it is no answer to the writ. Under this last head of 
authority the inquiry is, whether our law, finding such re- 
straint maintained or permitted by other communities with 
which we have intercourse, chooses to say that, under certain 
circumstances and limited conditions, it will interpose and 
continue that restraint on persons passing through our 
territory. Your Honors will see, that though you may as- 
cribe to these three sources of authority, the means or 
grounds for the restraint under consideration, yet after all, 
they are but two; the authentic and original law of our 
State, and the authentic and original law of the Federal 
Government. For the legal policy that may make possible 
and exceptional, in favor of strangers, a condition of things 
that we do not permit to our own citizens or tolerate in our 
own population, though called by the name of comity, must 
after all, be a part of the jurisprudence either of the Federal 
Government in force within this State, or of the State Gov- 
ernment, administered by our Courts. 



24 SPEECHES OF WILLIAM MAXWELL EVARTS 

Having thus, as I think, rightly put before the Court the 
real point for its consideration, and assigned the true limits 
from which the rules for its adjudication must be furnished, 
let us look for a moment at the position taken by our op- 
ponents. As I understand the learned counsel who supports 
the pretensions of the State of Virginia, and maintains the 
case of the appellants here, the form and substance of his 
argument may be briefly divided thus: The first point, on 
which he insists, which includes mere general topics, ex- 
panded through the first seventeen pages of his brief, is 
designed as an argument to propitiate the Court to a favorable 
consideration, or at least to an imi)artial estimate of this 
stranger, slavery; to show that it is not as bad as it has been 
painted, and that some of the men who have given it an ill 
name, have themselves had complacency and toleration for 
other social faults and defects, in the communities in which 
they lived, that were quite as bad. Its purpose is to put 
this Court in a disposition to find no repugnance to this in- 
stitution of slavery, in their own breasts, in the public con- 
science, or in the sentiment or in the action of this State, as 
evinced by any legislation, any principles of its common 
law, any judicial determinations, except as they may find 
written in the statutes, some imperative prohibition of 
slavery. He would bring you to think that if this were an 
open question (and he will contend that it has been left an 
open question, so far as any statute of the State is con- 
cerned) — there are many reasons of conscience, of justice, 
of benevolence and of duty, which require the maintenance 
and continuance of the institution of slavery, and require 
every man, whose hands are untied, to give it a helping and 
supporting hand; that you must find yourselves subdued by 
some hard system of positive law, that prohibits you from 
being hospitable to this social and civil institution of slavery, 
to justify this Court in frowning upon it. In some future 
stage of my argument I shall have, more completely and 



THE LEMMON SLAVE CASE 25 

distinctly perhaps, to direct the attention of the Court to 
some of the many positions and ilhistrations which are em- 
bodied in this forensic plea for slavery. But let me say 
now, that if this Court and our people cannot be brought to 
look kindly upon its fragmentary and temporary existence 
in our midst, but by trampling down, step by step, all the 
great barriers against oppression that have been raised 
by the reason, the justice and wisdom of age after age — but 
by undermining the principles that have built up a great, 
free and powerful nation, to be the habitation of liberty 
and justice for the great population of to-day, and for 
generation after generation yet to come; if the rights, 
poor, feeble, casual, of the black man, cannot be overborne 
or overthrown without tearing in pieces the law of nations — 
confounding all distinctions between civilization and bar- 
barism — subduing right by might, and thinking that force 
and power can, any day it chooses, call evil, good, and good, 
evil, and that a few soft phrases and intricate sentences can 
obscure, even for an hour, the difference between right and 
wrong, and the fundamental distinction between a rule of 
force and a rule of right: then this class of the community, 
while here in the State of New York, is abundantly safe; 
for an adoption of the maxims and the principles that are 
necessarily claimed in this deliberate argument, that force 
is right, and power is law, can only be expected by reversing 
the whole tide of civilization, and by bringing into discus- 
sion, in courts of justice, that rest upon nothing but the 
supremacy of reason for their authority, propositions that 
make foolish the existence of tribunals of justice, when con- 
tests of force alone are important or interesting to man and 
to society. 

The next proposition of the counsel for the appellants is 
that, up to the time of this judicial inquiry in the Court be- 
low, there was no legislative act of our State that, by its 
effect or in its terms, operated to prevent our Courts from 



26 SPEECHES OF WTLLIA^I MAXWELL EVARTS 

withholding a judgment of liberty, on a writ of Habeas 
Corpus, from slaves brought hither from another State of 
the Union; and further, that if the statutes of the State, 
rightly construed, should be held to have that force and effect, 
under the Constitution of the United States, such statutes 
are invalid, and no judgment that was based upon such a 
construction of the law of this State, could be sustained. 
And this prohibitory control of the Constitution of the 
United States, over this subject, is based upon the commer- 
cial powers of the Federal Government to regulate that kind 
of intercourse between the States of the Union, and upon the 
provision or guaranty of the Constitution to the citizens of 
each State, that they shall be entitled to all the privileges 
of citizens in the several States. In gaining this effect from 
the latter clause, the learned counsel holds, by a construc- 
tion, I think, somewhat novel, that its meaning is, that the 
citizens of each State, shall have in each other State, not 
the same rights as the citizens of the State into which they 
come, but, what the learned counsel describes as, the rights 
of a citizen of the United States, in each State into which 
they come; and, this being rather a shadowy description of 
rights, not to be found, I think, defined in any constitution 
or by any laws, the proposition ends in claiming as the effect 
of the clause in question, that the citizens of each State, com- 
ing into another State, besides the privileges and immunities 
of citizens enjoyed there, which they are to receive in full, 
are also to be accorded all the rights they had at home; and 
that this clause (in its natural, and in its established, con- 
struction so easily understood, so consonant with general 
jurisprudence, so important and useful in preserving relations 
between the citizens of different States, by according freely 
and at once to every citizen who comes here, the same rights 
which our citizens have) is turned into an instrument and 
means of the absolute overthrow of State sovereignty. 
That is to say, that, under this clause of the Constitution, 



THE LEMMONJ SLAVE CASE 27 

instead of protecting the citizens of every State against 
disparaging distinctions in any State, between them and 
the citizens of that State — instead of being a shield and a 
guard — the Federal Constitution arms them with the codes 
and statutes of their own State, which they carry with them, 
as an additional system of law, to be administered in their 
favor, while they remain lawfully within the State to which 
they have made their visit. I say it comes to this sub- 
stantially, in terms; and it must come to this if it varies at 
all from what seems to me, the simple and necessary con- 
struction, that its effect is limited to securing to citizens of 
other States, while here, the same rights and privileges with 
our own citizens. For, although it is very easy to talk of a 
"citizen of the United States," it is verv diflScult to find a 
citizen of the United States, that is not a citizen of some 
State, and it is very difficult to find in my judgment, a 
citizen of any State who is not a citizen of the United States. 
I do not see where you will find, in the law or Constitution, 
any description of citizenship of the United States, as distin- 
guished from citizens of the States, except in regard to per- 
sons brought in ah extra, persons of foreign nativity where an 
operative citizenship, of the United States, proceeds from 
the Federal power. But none of us that were born here 
ever got any right of citizenship of the United States, except 
by, and from, and in, the fact that we were citizens of some 
State. 

The course that I shall think suitable, if the Court please, 
to adopt in this direct legal inquiry, under this writ of Habeas 
Corpus now before the Court, will be to say, and, I think to 
show, that, as for legal cause for the restraint of these persons 
within the city of New York, under the circumstances de- 
tailed, the Constitution of the United States, and the Fed- 
eral statutes, give no law whatever — none — and that they 
have nothing to do with it. In the first place, I state, as a 
point of elementary constitutional law, that the Federal 



28 SPEECHES OF WILLIAM MAX^VELL EVARTS 

Constitution, and legislation under it, have, in principle 
and theory, no concern with the domestic institutions, the 
social basis, the social relations, the civil conditions, which 
obtain within the several States. Is there any doubt on 
that subject? We are all familiar with the divisions of 
political opinion, that have arisen on the question whether 
this or that particular power sought or claimed to be exer- 
cised by the Government of the United States, was or was 
not within the grants of power in the Federal Constitution. 
We all know that, as lawyers, we are not unfrequently called 
upon to determine, whether this or that exercise of govern- 
mental power by a State authority is or is not an infraction 
upon the express or implied power of the Federal Govern- 
ment. But, every lawyer knows that the whole jurispru- 
dence of State and Federal courts on these subjects — as to 
whether the express power or necessary implication of power 
exists in the United States, and whether the particular 
action of a State Government is a violation of some express 
prohibition upon its action in the Federal Constitution, or 
is an intrusion and encroachment upon some explicit or im- 
plied power of the Federal Government — every lawyer, I 
say, knows that the whole matter involved within the 
limits of this inquiry constitutes, as it were, but the merest 
fraction of the general rights, laws, institutions, employ- 
ments, conditions, relations, which build up civilized so- 
ciety, and make up the body of the subjects of the jurisdic- 
tion of the several State Governments, 

It is very difficult to see how it can be claimed that, 
upon any general theory, the Federal Government has 
anything to do with any questions regulating the rights and 
titles to property — regulating the distribution of rank and 
orders in society, if they should ever come to exist, or at all 
touching the great social fabric, which makes up a civil 
State. I am, then, justified in saying that, upon the whole 
theory of the two governments, State and Federal, we are 



THE LEMMON SLAVE CASE 29 

quite free from any implication, or intendment, that the 
Federal power has anything to do with the civil conditions 
and social arrangements within the different States. 

If we look at the history of the Constitution, and of the 
opinions of the men who framed it, we find that a determined 
stand was made against anything like the establishment of a 
general government that should exercise authority, at all, 
over the general fabric and system of the domestic condi- 
tions of the people. All the different provinces had laws, 
and customs, and arrangements, with which they were satis- 
fied, and they were unwilling, in the language of Mr. Ells- 
worth, of Connecticut, "to trust the Federal Government 
with their domestic institutions." And we know that, since 
the formation of the Constitution, its amendments, and the 
political controversies that have arisen under it, have all 
tended to confine the General Government to, and restrict 
the State Governments only in, the particular and main 
lines of authority that are delegated in the Federal Consti- 
tution. Now, if we had not looked at the Federal Consti- 
tution in this light, it would surprise us to see, in how few 
provisions, and in relation to how few subjects, it at all 
touches, or makes mention of, the condition of people 
within the States. There are but four references, as I con- 
strue the Constitution, that can bear this construction. 

The first is a reference to the civil conditions obtaining 
within the States to furnish an artificial enumeration of 
persons, as the basis of Federal Representation and direct 
taxation, distributively between the States. 

The Constitution establishes a rule for the distribution of 
representation in the Federal Government, among the dif- 
ferent States of the Union, by a reference to the condition 
of people within it — that is to say, instead of adopting the 
natural numeration of population throughout this country, 
as the basis of distribution of Federal Representation, it 
does establish an artificial rule or method of count, for that 



30 SPEECHES OF TVTLLIAM MAX\\TLL EVARTS 

purpose recognizing social differences of condition in parts 
of the population. It does not make any discrimination 
between States, but says throughout all the States, from 
Massachusetts to Georgia, you shall count all the people 
that come within a certain description (which is intended to 
include everybody but slaves, without the odium of naming 
them), and then count three-fifths of the rest, who can be 
none others than slaves. 

The second reference of the Federal Constitution is to the 
political rights of suffrage ivithin the States, as supplying the 
basis of the Federal suffrage in them, respectively. 

Here, the Federal Government comes into the States 
merely to seek what it shall find there: not in the remotest 
degree to establish anything, to preserve anything, to 
affirm or continue anything. It is demonstrable that each 
State has a complete control over the suffrage within it, for 
all Federal representation. 

The Constitution has expressly declared, that whatever 
each State shall consider a proper basis of suffrage for rep- 
resentation in the more numerous body of its legislature, 
shall be the basis of suffrage for representation in Congress. 

The third provision, one to which I have already referred, 
is that for securing to the citizens of every State, within 
every other, the privileges and immunities (whatever they 
may be) accorded in each to its own citizens. Let us look 
at the phraseology of that section, to see whether it bears 
any other construction than the simple one which I have 
attached to it. The words are these: 

"The citizens of each State shall be entitled to all privi- 
leges and immunities of citizens in the several States." 

It is claimed by the learned counsel for the appellants, 
that this should be construed as if it read: "The citizens of 
each State shall be entitled to all the privileges and im- 
munities of citizens of the United States — in the several 
States." 



THE LEMMON SLAVE CASE 31 

But it is very plain as it seems to me, in the first place, 
that there is nothing in the condition of a citizen of the 
United States, which would warrant the suggestion, that 
there was any intention that he should carry into any 
State social or political rights which citizens there did not 
enjoy. And, in the second place, the natural and neces- 
sary construction of the clause is, that the privileges and 
immunities secured to citizens of each State, while within 
another, are the privileges and immunities that citizens of 
the State, where such privileges and immunities shall need 
to be claimed, enjoy. It establishes, and should establish, 
a rule of equality and uniformity, not of distinction and 
confusion. 

The fourth provision of the Constitution, which comes 
under our consideration, is familiarly known as the "Fugi- 
tive Slave Clause," and reads as follows: "No person held 
to service or labor in one State, under the laws thereof, 
escaping into another, shall, in consequence of any law or 
regulation therein, be discharged from such service or labor, 
but shall be delivered up upon claim of the party to whom 
such service or labor mav be due." 

This clause undoubtedly, does affect the condition of 
persons in the States of the Union. It, undoubtedly, does 
affect an escaped slave, while within any State of this 
Union into which he shall have escaped, with certain re- 
straints, impediments, burdens and consequences of restora- 
tion, which are not imposed by the government or laws of 
the State in which he is found. And here, for the first, 
does the Federal Government, by its own force, put upon 
this particular class of our population, found in the special 
predicament of escape from the State in which they owed 
service, the bonds of Federal obligation, and destroys en- 
tirely their recourse to the protection which, otherwise, 
they could have claimed from the laws of the State in which 
they are found. 



32 SPEECHES OF WILLIAM ^lAXWELL EVARTS 

Now I have said that these are the only clauses of the Con- 
stitution that can be held in any sense to relate, at all, to 
the condition of persons, civil or political, in the States of 
the Union, for anj^ purposes of Government; and that none 
of these clauses touch the question now under discussion. 
The argument to this effect in respect to the "Fugitive 
Slave Clause " is unanswerable. 

The general principles of jurisprudence and the decisions 
of the Federal courts, all show that, but for the existence 
of this clause, an escaped slave would be held by no restraint 
or coercion, except such as the State in which he was found 
chose to establish and enforce; and that the rights of the 
master would rest upon nothing but the comity or the legis- 
lation of the State into which the escape had been made. 
The existence of this clause in the Constitution is not only 
evidence that the right of reclamation would not have 
existed but for its insertion; but it is an argument of the 
utmost force, that even with this clause in the Constitu- 
tion, no right exists for his master to hold in servitude, in 
the State of refuge, even an escaped slave. An escaped 
slave, after he is restored, is held in slavery by the laws of 
the State whence he escaped and to which he returned, as he 
was before. But while he is in another State, the "Fugitive 
Slave Clause " gives no authority to hold and use him as a 
slave. There is no legal answer that can be made to our 
writ of Habeas Corpus, in respect to a slave escaped into 
this State, except that he is held by authority of Federal 
legislation, under the Constitution, providing the mode of 
his recapture and restoration to his home of slavery. 
Whether now it would be held by the Federal judiciary, that 
there existed a general right on the part of the master, per- 
sonally, to reclaim the slave by his own direct force, as bail 
may recover their prisoner, is doubtful. But granting that 
such right exists, still there is no right to hold him in slavery 
in the State to which he has escaped. There is the right of 



THE LEMMON SLAVE CASE 33 

taking and carrying him away, undoubtedly, either by the 
process of Federal law, or, perhaps, by this personal au- 
thority that belongs to the relation of bail and prisoner, 
or master and slave; but not to hold him in slavery; and 
any attempt to do so, or to do anything except with due 
diligence to remove the escaped slave to the State from 
which he escaped, would not be protected against our writ 
of Habeas Corpus by the Federal Constitution or Federal 
legislation. 

Before considering the decisions of the United States 
courts, which I suppose clearly establish the position that 
the Federal legislature and the Federal courts have nothing 
whatever to do with the subject now before this Court, I 
will, very briefly, place before the Court my views as to the 
existing law of this State, on the subject of the allowance or 
permission of slavery within it. 

If there is nothing left to be considered but whether our 
law sustains or permits this relation of master and slave, 
if this is the kind of legal restraint necessary to defeat of 
its proper result the writ of Habeas Corpus, then we must 
find in our State law, in some form, an authority for the re- 
straint. 

It is necessary for me, here, only to suggest, that it is not 
requisite, to support a legal restraint, that there should be a 
positive warrant or mandate of law directing or requiring 
it. A restraint 'permitted by our law is as good an answer to 
the writ of Habeas Corpus as a positive warrant or mandate. 
It is not necessary that we should have a writ of execution, 
or a warrant of committal, or that the imprisonment should 
be in the State prison or in a jail, or that, in any form, there 
should be a direct command of active authority. The 
relations that our law recognizes, whether or not they be 
established or regulated by statute, and which give, in their 
nature, restraint over the person, to this or that degree, 
constitute a good answer to uphold the exercise of that 



34 SPEECHES OF WILLIAM MAXWELL EVARTS 

restraint to that degree. The relations of husband and wife, 
of parent and child, of guardian and ward, of the drunkard 
and his committee, of the lunatic and his committee; all 
these relations, when the exigency of the writ evokes them 
as a cause of the restraint of persons, are recognized by our 
law as justifications for such restraint and control as do not 
exceed the due measure which the law allows to them. 
But, if the Court please, there can be nothing recognized by 
law as an occasion or justification of restraint, except some 
general status established, allowed, recognized, by our law, 
or, some positive mandate or warrant. In one or the other 
form, as matter of positive, actual, recognized existence in 
our State, an answer must be made to the writ, or the 
liberty of the subject of it is, at once, secure to him. The 
answer here does not set up any of the natural relations. 
Nor does it set up the relation of apprentice and master, or 
of guardian and ward, or any similar relations, which are 
not natural but yet are lawful relations. The answer is 
slavery; and not slavery of the State of New York, but 
slavery of the State of Virginia. It is slavery in Virginia, 
in transit through New York, continuing here the relation 
created by the law in Virginia, which it is expected or de- 
sired, shall receive the sanction and sui)port of our law, 
and of this Court, for the special purpose the occasion re- 
quires. 

But, I maintain, the law of this State does not permit the 
existence of slavery within its limits. And, first, the com- 
mon law of the State does not permit the existence of slavery 
within its limits. I now speak of the common law of this 
State as we understand it, as a system of law governing the 
relations of persons, and of persons to things in this State, 
as a body of law discriminated and separated from that which 
is established by statute. This body of law is derived from 
England, the source of the common law of this State; and 
when I say the common law of this State does not permit 



THE LEMMON SLAVE CASE 35 

slavery within its limits, I fear no contradiction, in the 
known judicial sense of that law. 

Whether or not the institution of slavery within this 
State — while it existed and was regulated by statute, and 
was modified also, I have no doubt, by subjecting it, in some 
degree, to the principles of common right and general jus- 
tice which lie at the foundation of the common law of the 
State, and of the nation from which we inherited it — whether 
or not the institution of slavery in this State was, properly 
speaking, a part of the common law of this State, seems not 
to be a very important inquiry. I do not suppose it should 
be, properly, so considered. I suppose that the whole 
course of legislation, the whole course of judicial deter- 
mination, treated the whole system of slavery in this State 
as foreign — not incorporated into our system, not permitted 
to be moulded into that relation between master and slave 
which would have followed from its control by the common 
law. The cases I have referred to from the English books 
(and, I take it, they have not been at all shaken by the com- 
ments of the learned counsel), the cases show, that, by the 
common law of England, any such status of slavery as it is 
known in the United States, or as is pleaded here as an 
answer to the writ, never existed. This is not to be doubted. 

Whether, in former times, villenage existed in England, 
whether it was a monstrously iniquitous oppression, and 
whether it was inconsistent for British judges to frown upon 
negro slavery there, in the eighteenth century, because vil- 
lenage had obtained in earlier times, and whether this in- 
consistency justly subjects them to my learned friend's 
derision, may be matter of useful inquiry in some other 
connection than the present. But the common law of 
England never knew of this condition of slavery which is 
pleaded as an answer to the writ of Habeas Corpus, and as 
legal cause for holding these persons. 

The status of slavery, therefore, not being established by 



36 SPEECHES OF WILLIAM MAXWELL EVARTS 

the common law of England before the Revolution — and 
that constitutes our common law — we need to find a posi- 
tive support for slavery among our population, recognized 
by the public will of the State, as manifested by legislation, 
in order to sustain it. If obliged to rest upon the common 
law, it would have no support whatever. 

What may, at earlier periods of our history, have been 
the condition of our statute law on this subject, comes to 
be rather an idle inquiry, when we consider the plain and 
comprehensive terms of the existing statute law of the 
State. My learned friend has called the attention of the 
Court — rather by way of parenthesis, however, — to the 
statute which it is now necessary to look at more distinctly. 

The Revised Statutes, being, in the provisions I am now 
about to read, a re-enactment of the law of 1817, provide as 
follows: "No person held as a slave shall be imported, in- 
troduced, or brought into this State, on any pretence what- 
ever, except in the cases hereinafter specified. Every such 
person shall be free. Every person held as a slave who hath 
been introduced, or brought into the State, contrary to the 
laws in force at the time, shall be free." (Section 1.) 

"Every person born within this State, whether white or 
colored, is free; every person who shall hereafter be born 
within this State, shall be free; and every person brought 
into this State as a slave, except as authorized by this title, 
shall be free." (Section 16.) 

I cannot think it important gravely to discuss with my 
learned friend, whether this law, in its proper construction, 
does proscribe the existence of a slave within this State, and 
make it a legal impossibility wherever the law has force. 
He has argued, I know, that, although the Legislature, 
besides the commercial word "imported," and besides the 
word, of Latin origin, "introduced" (which means "brought 
within"), has also used the words "brought into" — that it 
has failed to make itself fairly understood, or to accom- 



THE LEMMON SLAVE CASE 37 

plish the meaning imputed in our construction, that a slave 
should not he within this State. It is said that the true force 
of these terms is satisfied by the construction, and therefore 
the true construction of the clause should be, "that no slave 
shall be incorporated into the population of this State; that 
no slave shall be brought into it, or imported into it, with 
the design and purpose that he should become a part of the 
population of this State." Exactly what that means, 
exactly what limits to the tolerance or maintenance of 
slavery in this State, this construction of the statute would 
impose, it is not easy to say, nor do I care to inquire. I 
respectfully submit, that the statute is clear, comprehensive, 
and decisive in its meaning, and in its effect. If the statute 
has the force of law in this State, there never can be, on any 
pretence, a person in the condition of slavery within this 
State, unless some provision of that statute, found between 
the first and last sections of it which I have read to the 
Court, gives that right. 

Now, we do find certain exceptions made by the statute 
under consideration, for the allowance of slaves under special 
circumstances within this State, and among these exceptions 
the following, being sections six and seven of the title: 

" Sec. 6. Any person not being an inhabitant of this State, 
who shall be travelling to or from, or passing through this 
State, may bring with him any person lawfully held by him in 
slavery, and may take such person with him from this State; 
but the person so held in slavery shall not reside or continue 
in this State more than nine months, and if such residence 
be continued beyond that time, such person shall be free." 

"Sec. 7. Any person who, or whose family shall reside 
part of the year in this State, and part of the year in any 
other State, may remove and bring with him or them, from 
time to time, any person lawfully held by him in slavery, 
into this State, and may carry such person with him or 
them, out of this State." 



38 SPEECHES OF WILLIAM MAXWELL EVARTS 

In 1841, this act was passed: 

"The third, fourth, fifth, sixth, and seventh sections of 
Title 7, Chapter 20, of the first part of the Revised Statutes, 
are hereby repealed." 

This express repeal of the sixth and seventh sections, 
which I have read from the Revised Statutes, presents in 
the most distinct and absolute form the determination of 
the people of this State, that the temporary introduction of 
slavery by transient visitors should not, under any circum- 
stances, be permitted. 

Your Honors will perceive that the question now presented 
is not at all dift'erent from what it would have been, while 
the sixth and seventh sections, that permitted a temporary 
residence with the slave, were in force, in the case of a slave 
attempted to be held after the expiration of the limited term. 
There was a permission for a specified i)eriod of time, and a 
declaration that if that time were overpassed, the slave 
should be free. Now no hospitality of any kind, or for a 
moment, is permitted to the master, with his slave, in any 
sense of retaining him as a slave. 

Let us, then, consider a little more fully whether the 
Federal laws and Federal decisions leave any doubt as to 
the complete exemption of the several States from Federal 
control in this matter. Now, your Honors will perceive 
that, while we talk of comity permitting to strangers from 
communities with which we are in peace, passing through 
our State, this or that privilege, and so long as the extent 
of this comity is determined by our jurisprudence and by 
our own Statutes — we do control entirely the condition of 
persons within our State. If judicial determinations, at any 
time, show greater hospitality to foreign institutions than 
public sentiment approves, the legislature may limit, or 
wholly terminate that comity. 

But when it is claimed that by a superior and paramount 
law Mr. and Mrs. Lemmon can make a good answer to the 



THE LEMMON SLAVE CASE 39 

writ of Habeas Corpus, in this State, that they hold these 
eight persons in New York as their slaves, until they, in 
piu-suance of their proposed voyage, should take them away, 
— that they bring and hold their slaves here by paramount 
law, and that law is found in the Constitution of the United 
States, the question arises: Where is the limit of that right? 
I defy the learned counsel for the appellants, if he claims 
this right under the Constitution of the United States, to 
fix a limit of any kind, either in time, in circumstance or in 
the tenure of the slavery here — unless it is to be left to some 
tribunal to say whether the maintenance of slavery under 
the circumstances, and for the time claimed, is within some 
general obligation of respect and regard between the different 
States of this Union. And this brings the question back to 
the region of comity, and not of right. 

There is no stopping place, in my judgment, for the right 
claimed under the Constitution of the United States, short 
of allowing the continuance and maintenance of slavery just 
so long as citizens of other States shall choose to reside within 
this State, without surrendering their character of citizens 
of other States. Accordingly, the claim now, as I under- 
stand it, is that Virginians coming here, can bring their 
slaves and keep them here as long as they remain Virginians. 
The claim is one of vast proportions, if it be any claim at all; 
it has no self-imposed limitations whatever. In nature and 
substance it is a claim that citizens of each State may carry 
into other States the institutions of their own State. Now, 
the exclusion of slavery from the States has been the subject 
of legislation quite as much in the slave as in the free States. 
I doubt whether there is a slave State in the Union that has 
not, at some time, or to some extent, legislated for the exclu- 
sion of slaves from its territory, and prescribed, as the direct 
and immediate consequence of their introduction, that they 
should become free. Will any one draw a distinction be- 
tween the right of excluding slaves from a State from the 



40 SPEECHES OF ^^TLIJ.VM MAXANTLL EVARTS 

love of liberty, and excliuling I hem from motives of pro- 
tection and regard for slavery? If South Carolina, from fear 
of being over-stocked with slaves, legislates to prevent the 
introduction of more slaves; and if New York regarding one 
slave an overstock, legislates to exclude that one, is there 
any difrerence as to the power of legislation, growing out of 
the motive and puri)ose of it? I take it not. Virginia, as 
early as her emancipation from the dominion of the British 
crown permitted, in 1778, passed a law ])rohibiting the intro- 
duction of slaves into Virginia, and prefaced it with a pre- 
and)le that she had been prevented from doing it before 
then, "by the inhuman exercise of the veto of the King of 
England." Tlial hiw and its preamble are a good answer, 
from the State of Virginia, to many of the views now sup- 
l)ortetl. in its name and behalf, by the learned counsel. 

Certainly slavery cannot be "just, benign, beneficent, 
consistent witli pure benevolence, and, indeed a positive 
duty," — if the exclusion and suppression of the institution 
had been retarded by an act of authority, which was justly 
stigmatized as inhuttian. Certainly we might suspect that 
slavery itself was inhuman, if the suppression of it was only 
sto})ped by an act of inhuman tyranny. 

But later legislation, and legislation that has been brought 
into judicial controversy in the slave States and in the Fed- 
eral tribunals, has busied itself upon this same subject. The 
case of Groves vs. Slaughter (15 Peters) was considered, 
and should be considered, and is tenaciously adhered to by 
the present Chief Justice of the United States, as a decision 
that the Federal government has no voice or authority on 
the subject whatever. How did that case arise? The Con- 
stitution of Mississippi adopted in 1832, had prohibited the 
introduction of slaves as merchandise or for sale after the 
first day of May, 1833. Notwithstanding that provision, 
there having been no affirmative legislation, defining penal- 
ties and affixing consequences to the introduction of slaves 



THE LEIVIMON SLAVE CASE 41 

and their sale, the people of Mississippi bought a good many 
slaves from Kentucky and Tennessee, and other States, and 
gave their notes for them. When the notes became due, 
the slaves being in Mississippi, and still held as slaves, the 
collection of the notes was attempted to be defeated on the 
ground that the consideration was illegal, because the slaves 
had been introduced into the State of Mississippi, contrary 
to the provisions of the Constitution, The State courts of 
Mississi])pi held that that was a sound view of the law, and 
that from the payment of the notes, amounting altogether 
to some millions of dollars, the people of Mississippi were 
quite free; that they might keep the slaves and not pay the 
notes. The question was brought up before the Supreme 
Court of the United States, in the case of Groves vs. Slaughter, 
argued by Mr. Webster, Mr. Clay, and General Jones, on 
behalf of the note holders, and by Mr. Gilpin, Attorney- 
General, and Mr. Walker of Mississippi (since much dis- 
tinguished in public life), on the other side. A very elaborate 
discussion was had on one question involved, whether the 
Constitution of Mississippi, by its own vigor, operated such 
an illegality in the introduction of slaves, as made the notes 
void; or whether it was only binding upon the Legislature to 
pass laws that should prohibit their introduction and should 
affix such consequences — such as forfeiting the purchase, or 
making the slave free, or declaring the contract or the secur- 
ity void — as they might see fit. It was claimed on the part 
of the note holders that this Constitutional provision did 
not, of itself, without legislation under it, create such an 
illegality in the contract of sale, as defeated the recovery of 
the note. They contended, further, that if that consequence 
did follow, so as to be a matter of forensic importance in the 
case, the Constitution of Mississippi, which excluded the 
slaves, was, in this provision invalid, under the Constitution 
of the United States; that, under the commercial clause, the 
Federal Government had exclusive jurisdiction over the regu- 



2 SPEECHES OF AMLLIAM ^^AX\^TXL EVARTS 

it ion of commerce between the States; and if commerce 
etween the States, then of commerce in sKives, as well as in 
ny other property. The proposition, therefore, was, that 
his clanse in the Constitution of Mississippi wliich excluded 
laves from the State as merchandise was void, under the 
Constitution of the United States, iu lis commercial clause. 
Veil, that case was disposed of by the Federal judiciary 
olding, as matter of law, that the notes were not avoided 
y the Constitution of Mississii)pi, but thai ic^'islation was 
leeded to produce that effect . Hut the Court utterly scouted 
he notion that the clauses of the Constitution of the United 
itates appealed to, had anything to do with this (piestion of 
he introduction of slaves into either slave or free States, 
rhe opinion of the Court was given by Mr. Justice Tliomp- 
on, and disposed of the cause, as I have said, on the point that 
he Constitution of Mississippi did not invalidate the notes. 
5ut the mafrnitude of the question involved in this claim 
hat the commercial power of the I'nion had any authority 
•ver the introduction or determination of any status inside of 
, State, induced the Court to regartl it as a matter concerning 
^hich they must express the most decisive opinion. And if 
t be held that the point already decided disposed of the case, 
[ud that the further opinions of the judges were unnecessary 
md superfluous — why it is at least as good an authority as 
he reasoning of the judges in the Dred Scott case, beyond 
he point of decision there, and which is so much relied on 
n this argument. 

At page 506, Mr. Justice McLean states the question, 
'Can the transfer and sale of slaves from one State to 
mother be regulated by Congress, under the commercial 
)Ower.^" I take it for granted that there is much more sense 
n claiming that, when the introduction of slaves has some 
connection with commerce, in a proposed sale, you may 
nvoke the commercial power of the Union, than when their 
ntroduction is mere matter of convenience of travel. The 



THE LEAIMON SLAVE CASE 43 

learned judge proceeds: "The Constitution treats slaves as 
persons. By the laws of certain States, slaves are treated as 
property; and the Constitution of Mississippi prohibits their 
being brought into that State by citizens of other States, for 
sale, or as merchandise. Merchandise is a comprehensive 
term, and may include every article of traffic, whether for- 
eign or domestic, which is properly embraced by a commer- 
cial regulation. But if slaves are considered in some of the 
States as merchandise, that cannot divest them of the lead- 
ing and controlling qualities of persons, by which they are 
designated in the Constitution. The character of property 
is given them by the local law. This law is respected, and 
all rights under it are protected by the Federal authorities; 
but the Constitution acts upon slaves as persons, and not 
as property. . . . The Constitution of the United States 
operates alike on all the States, and one State has the same 
power over the subject of slavery as every other State. If 
it be Constitutional in one State to abolish or prohibit slav- 
ery, it cannot be unconstitutional in another, within its dis- 
cretion to regulate it. . . . The power over slavery 
belongs to the States respectively. The right to exercise 
this power by a State is higher and deeper than the Consti- 
tution. This involves the prosperity and may endanger the 
existence of a State. Its power to guard against or to remedy 
the evil, rests upon the law of self-preservation — a law vital 
to every community and especially to a sovereign State." 

Chief Justice Taney is not at all behind Mr. Justice Mc- 
Lean in his views of the necessary reservation to the States 
of complete control over this whole subject. He says, at 
page 508: "In my judgment, the power over this subject is 
exclusively with the several States, and each of them has a 
right to decide for itself whether it will or will not allow 
persons of this description to be brought within its limits 
from another State, either for sale or for any other purpose; 
and also to prescribe the manner and mode in which they 



44 SPEECHES OF ^^^LLIA^I ]MAX^VELL EVARTS 

may be introduced, and to determine their condition and 
treatment within their respective territories; and the action 
of the several States upon this subject cannot be controlled 
by Congress, either by virtue of its power to regulate com- 
merce or by virtue of any other ])ower conferred by the 
Constitution of the United States. I do not, however, mean 
to argue this question. I state my opinion upon it, on ac- 
count of the interest which a large portion of the Union 
naturally feel in this matter, and from an apprehension that 
my silence, when another member of the Court has delivered 
his opinion, might be misconstrued." 

Mr. Justice Story, Mr. Justice Thompson, Mr. Justice 
Wayne, and ]\Ir. Justice ]\IcKinley, concurred in these views 
of the Chief Justice and of Mr. Justice McLean. 

The next case to which I will briefly ask your Honors' 
attention is that of Prigg vs. The Commonwealth of Pennsyl- 
vania, in the 16th of Peters, and, especially, to the parts of 
the case that are referred to in my points. The Court is 
familiar with the general doctrine of that case. It raised 
before the Federal Court for decision the question, whether 
the Constitutional clause which provided for the rendition of 
fugitives from service, and the legislation under it, made the 
subject one of exclusive Federal regulation, and whether the 
statute of the State of Pennsylvania, and of course those of 
New York and other States, within the same purview, were 
constitutional. The exclusive authority of Federal Legisla- 
tion, in the premises, was fully established, and upon gen- 
eral reasons which established equally, that but for the 
clause in the Constitution, the whole subject, even in respect 
to escaped slaves, would have been absolutely and exclu- 
sively within the control of State authority. 

Judge Story, delivering the opinion of the Court, says 
(speaking of the fugitive slave clause of the Constitution): 
"The last clause is that, the true interpretation whereof is 
directly in judgment before us. Historically, it is well known, 



THE LEMIION SLAVE CASE 45 

that the object of this clause was to secure to the citizens of 
the slaveholding States the complete right and title of owner- 
ship in their slaves, as property in every State of the Union 
into which they might escape from the State where they 
were held in servitude. The full recognition of this right 
and title was indispensable to the security of this species of 
property in all the slaveholding States; and, indeed, was so 
vital to the preservation of their domestic interests and in- 
stitutions, that it cannot be doubted that it constituted a 
fundamental article, without the adoption of which the 
Union could not have been formed. Its true design was to 
guard against the doctrines and principles prevalent in the 
non-slaveholding States, by preventing them from inter- 
meddling with, or obstructing, or abolishing the rights of the 
owners of slaves. 

"By the general law of nations, no nation is bound to 
recognize the state of slavery, as to foreign slaves found 
within its territorial dominions, when it is in opposition to 
its own policy and institutions, in favor of the subjects of 
other nations where slavery is recognized. If it does it, it is 
as a matter of comity, and not as a matter of international 
right. The state of slavery is deemed to be a mere municipal 
regulation, founded upon and limited to the range of the 
territorial laws. This was fully recognized in Sommersetfs 
case, Lofft's Rep. 1, s. c. 11 "State Trials," by Harg, 340, 
s. c, 20 Howell's "State Trials," 79; which was decided 
before the American Revolution. It is manifest from this 
consideration, that if the Constitution had not contained 
this clause, every non-slaveholding State in the Union 
would have been at liberty to have declared free all runaway 
slaves coming within its limits, and to have given them en- 
tire immunity and protection against the claims of their 
masters; a course which would have created the most bitter 
animosities, and endangered perpetual strife between the 
different States. The clause was, therefore, of the last 



46 SPEECHES OF ^^TLLIAM MAXWELL EVARTS 

importance to the safety and security of the Southern States, 
and could not have been surrendered by them without en- 
dangering their whole property in slaves. The clause was 
accordingly adopted in the Constitution by the unanimous 
consent of the framers of it; a proof at once of its intrinsic 
and practical necessity." 

Again, at pages 622 and 623, he says: "In the first place, 
it is material to state (what has already been incidentally 
hinted at) that the right to seize and retake fugitive slaves, 
and the duty to deliver them uj), in whatever State of the 
Union they may be found, and of course the corresponding 
power in Congress to use the appropriate means to enforce 
the right and duty, derive their whole validity and obliga- 
tion exclusively from the Constitution of the United States, 
and are there, for the first time, recognized and established 
in that peculiar character. Before the adoi)tion of the Con- 
stitution, no State had any power whatever over the sub- 
ject, except within its own territorial limits, and could not 
bind the sovereignty or the legislation of other States. When- 
ever the right was acknowledged or the duty enforced in 
anv State, it was as a matter of comitv and favor, and not 
as a matter of strict moral, political, or international obliga- 
tion or duty. Under the Constitution it is recognized as an 
absolute, positive right and duty, pervading the whole 
Union with an equal and supreme force, uncontrolled and 
uncontrollable by State sovereignty or State legislation. It 
is, therefore, in a just sense a new and positive right, inde- 
pendent of comity, confined to no territorial limits, and 
bounded by no State institutions or policy." 

And, at page 625 he proceeds: "These are some of the 
reasons, but by no means all, upon which we hold the power 
of legislation on this subject to be exclusively in Congress. 
To guard, however, against any possible misconstruction of 
our views, it is proper to state, that we are by no means to 
be understood in any manner whatsoever to doubt or to 



THE LEMMON SLAVE CASE 47 

interfere with the poHce power belonging to the States in 
virtue of their general sovereignty. That police power ex- 
tends over all subjects within the territorial limits of the 
States, and has never been conceded to the United States. 
It is wholly distinguishable from the right and duty secured 
by the provision now under consideration, which is exclu- 
sively derived from and secured by the Constitution of the 
United States, and owes its whole efficacy thereto." 

These opinions, included in the judgment as pronounced 
by the Court, were assented to by all the judges who assisted 
in the actual determination of the case. 

The next case is that of Strader vs. Graham, in 10th How- 
ard, and was of this kind: Graham was a Kentucky slave- 
owner, and had permitted some of his slaves to cross over 
into the State of Ohio, habitually, for the purpose of instruc- 
tion in music, designing to retain his property in them, and 
to make this talent, thus to be cultivated, productive to 
himself. The slaves receiving this instruction returned to 
their master, and afterward fled from his service, making 
their escape by means of a steamboat on the Ohio River. 
By the law of Kentucky, in the protection of slave property 
against such casualties as this, the proprietors of any steam- 
boat or other vessel upon the river, by means of which the 
escape should be made, are made responsible to the slave- 
owners in an action for the value of the slave. An action 
was brought, under this law, by Graham, against the owners 
of the boat, upon which the escape had been made, in equity 
to enforce a lien, given by the statute, against the boat. The 
litigation, commenced in the State Court of Kentucky, ter- 
minated in a final judgment in the Court of last resort, in 
favor of the slave-owner. From that decision an appeal was 
taken under the 25th section of the Federal Judiciarj^ act, 
to the Supreme Court of the United States, the defence in 
the Court below being on the ground, in part at least as a 
good and sufficient one, that these slaves had become free 



48 SPEECHES OF WILLIAM MAXWELL EVARTS 

by their master's voluntary introduction of them into the 
State of Ohio, and that the state of slavery thus dissolved 
was incapable of reinstatement. The 25th section, as your 
Honors know, carries up cases from the courts of last resort 
in the States, when the decision is alleged to have involved 
the consideration of a right secured under the Constitution 
of the United States, and has resulted in a decision adverse 
to that right. 

The appellants in that case, on the question of freedom or 
slavery, and the considerations it involved, stood precisely, 
to illustrate the matter, as these appellants now before the 
Court would stand in the Supreme Court of the United 
States, if your Honors' judgment here should affirm the 
judgment of the Court below, and an appeal should be prose- 
cuted from your judgment to the Supreme Court of the 
United States, upon the ground that the right, to which your 
decision had been adverse, was protected by the Federal 
Constitution. 

Now, the first and important question in all cases that are 
carried into the Federal Judiciary by that method of appeal 
is, whether the Appellate Court has jurisdiction of the cause. 
In other words, whether the judgment below does contain 
an adjudication upon any right under the Constitution of 
the United States, and whether the determination has been 
adverse to the right claimed, for both these elements must 
be found in the decision of the Court of last resort of the 
State, or there is no appeal to the Supreme Court of the 
United States to reverse the judgment, although it may be 
clearly erroneous. The direct point, therefore, of Federal 
control over the civil status of persons within the States, was 
raised in the case of Strader vs. Graham, as a question of 
jurisdiction. 

Chief Justice Taney, in delivering the opinion of the 
Court, says: "The Louisville Chancery Court finally de- 
cided, that the negroes in question were his slaves, and that 



THE LEMMON SLAVE CASE 49 

he was entitled to recover $3,000 for his damages. And if 
that sum was not paid by a certain day specified in the 
decree, it directed that the steamboat should be sold for the 
purpose of raising it, together with the costs of suit. This 
decree was afterward aflSrmed in the Court of Appeals in 
Kentucky, and the case is brought here by writ of error 
upon that judgment. 

"Much of the argument on the part of the plaintiffs in 
error has been offered for the purpose of showing that the 
judgment of the State Court was erroneous in deciding that 
these negroes were slaves. And it insisted that their previ- 
ous employment in Ohio had made them free when they 
returned to Kentucky. 

"But this question is not before us. Every State has an 
undoubted right to determine the status, or domestic and 
social condition of the persons domiciled within its territory, 
except in so far as the powers of the States in this respect are 
restrained, or duties and obligations are imposed upon them 
by the Constitution of the United States, and there is nothing 
in the Constitution of the United States that can in any 
degree control the law of Kentucky upon this subject. And 
the condition of the negroes, therefore, as to freedom or 
slavery, after their return, depended altogether upon the 
laws of that State, and could not be influenced by the laws 
of Ohio. It was exclusively in the power of Kentucky to 
determine for itself whether their employment in another 
State should or should not make them free on their return. 
The Court of Appeals have determined, that by the laws of 
the State they continue to be slaves. And their judgment 
upon this point is, upon this writ of error, conclusive upon 
this court, and we have no jurisdiction over it." 

A comparison of this case with the Dred Scott decision, 
and with the narrative of the litigation concerning Dred 
Scott, as given in the report of that decision, will exhibit to 
the Court the reason, as I suppose, that the Dred Scott con- 



50 SPEECHES OF WILLIAM MAX^VELL EVARTS 

troversy was not brought into the Supreme Court of the 
United States, by appeal from the judgment of the Court of 
Missouri. 

The Htigation concerning the Hberty of Dred Scott, gen- 
erally considered to have been a case made up for the pur- 
pose of raising certain questions for judicial determination, 
started in the Courts of the State of Missouri, and had 
reached final judgment in the last Court of that State, 
adverse to the liberty of Scott. Scott claimed his liberty by 
virtue of the Constitution of the United States, just as the 
freedom of Kentucky negroes was claimed under the Con- 
stitution of the United States. Pending this litigation in 
the Missouri case, the decision was made in the case of 
Strader vs. Graham, dismissing the appeal under the 25th 
section for want of jurisdiction. As this absolutely shut out 
any consideration of the rights or doctrines on which the 
freedom of Scott was supposed to have been gained, an 
abandonment of the litigation in the State Courts of Miss- 
ouri followed, and a new litigation by Scott, in the Federal 
Court, was commenced, whereby, through regular and gen- 
eral appeals from the Circuit Court to the Supreme Court of 
the United States, the whole cause was brought up, and the 
Court found itself, as it thought, at liberty to deliberate upon 
some matters of grave and general import, political and 
ethical, after they had disposed of the inquiry as to the free- 
dom of Dred Scott. 

The case Ex parte Simmons (4 Wash. C. C. R. 396), to 
which I have referred your Honors, seems a direct authority 
upon the question before us. 

There the question was, as to the freedom of a slave, 
brought voluntarily by his master into the State of Pennsyl- 
vania, during the prevalence of laws there which permitted 
the temporary residence of a master with his slave within 
the jurisdiction of that State. The period allowed by the 
statute being overpassed, the point was whether the slave 



THE LEMMON SLAVE CASE 51 

was entitled to his liberty, and Judge Washington decided 
that he was. 

I come now, if the Court please, to the decision in the 
Dred Scott Case, the general doctrines of which are invoked 
by the appellants here, as appears by the brief, though not 
insisted upon orally in the argument, and my learned friend 
has not called the attention of the Court to the particular 
principles laid down in the case, upon which his reliance was 
based. The general character of that case, and the exact 
limit of judicial inquiry, that its facts presented, have been 
already fully stated by my learned associate. An examina- 
tion of the opinion of Judge Nelson in that case will show 
that he has confined himself to the precise inquiry that the 
litigation properly presented for judicial determination, to 
wit, whether Dred Scott was, in Missouri, and by its law, a 
slave. 

If he was a slave, it must be universally conceded that 
he was not a citizen. As the jurisdiction in question, of the 
Federal judiciary is confined to suits between citizens of 
different States, the moment you put the plaintiff in the 
condition of not being a citizen of any State, of having no 
citizenship, and no civil rights whatever, of course there is no 
jurisdiction, as the plaintiff's standing in Court rest, not 
upon personality, but upon citizenship. 

But the Court after deciding this, did, through many of 
their judges, express opinions upon, and elaborately argue, 
two very important general principles, one of a political 
nature, and the other coming within the larger range of 
general ethics and morality. One of these points was, that 
the restrictive clause of the Missouri Compromise act was 
unconstitutional and void. There was an opportunity for 
discussion, though none for decision, on that point, by reason 
of this fact. Although the question of Dred Scott's freedom 
was fairly presented by a two years' residence with his master 
in the State of Illinois — a residence, with the effect of which 



52 SPEECHES OF WILLIAISI IVIAXWELL EVARTS 

the validity or invalidity of the Missouri Compromise act 
had nothing to do — yet, as the question of the freedom of his 
children and of his wife was also involved in the case, their 
residence, upon which their claim of liberty rested, hap- 
pened to be within the portion of the Missouri territory 
secured to freedom by the restriction of the Missouri Com- 
promise act, subject, of course, to its constitutional validity. 
The other point of inquiry was purely historical and ethical, 
and resulted in a very brief and summary deduction by the 
learned Chief Justice, from the judicial and general annals 
of the country, that the black men have no rights " that white 
men are bound to respect." Now both these topics are 
without any application to the real inquiry before this Court, 
and I have no occasion to refer to the Dred Scott decision, as 
a determination or discussion of the status of slavery in the 
territories of the United States. 

That subject is to be considered, either legislatively or 
judicially, where it may pro])orly arise. But I understand 
the principles announced in the opinions of the judges who 
concur in the judgment of the Court in the Dred Scott case, 
to establish, in the fullest manner, the entire control of 
State authority over the condition of all people within it, 
and to re-affirm the decisions of the Supreme Court, to which 
I have called your Honors' attention. 

Thus, the Chief Justice, delivering the opinion of the 
Court, says: "But there is another point in the case which 
depends on State power and State law. And it is contended, 
on the part of the plaintiff, that he is made free by being 
taken to Rock Island, in the State of Illinois, independently 
of his residence in the territory of the United States; and 
being so made free, he was not again reduced to a state of 
slavery, by being brought back to Missouri. 

"Our notice of this part of the case will be very brief; 
for the principle on which it depends was decided in this 
Court, upon much consideration, in the case of Strader et 



THE LEMMON SLAVE CASE 53 

al. vs. Graham, reported in 10th Howard, 82. In that case, 
the slaves had been taken from Kentucky to Ohio, with 
the consent of the owner, and afterward brought back to 
Kentucky, And this Court held that their status or condi- 
tion, as free or slave, depended upon the laws of Kentucky, 
when they were brought back into that State, and not of 
Ohio; and that this Court had no jurisdiction to revise the 
judgment of a State Court upon its own laws. This was 
the point directly before the Court, and the decision that 
this Court had not jurisdiction turned on it, as will be seen 
by the report of the case. 

"So in this case, as Scott was a slave when taken into the 
State of Illinois by his owner, and there held as such, and 
brought back in that character, his status, as free or slave, 
depended upon the laws of Missouri, and not of Illinois. 

"It has, however, been urged in the argument, that by 
the laws of Missouri he was free on his return, and that this 
case, therefore, cannot be governed by the case of Strader 
vs. Graham, where it appeared by the laws of Kentucky, 
that the plaintiffs continued to be slaves on their return from 
Ohio. But whatever doubts or opinions may at one time 
have been entertained on this subject, we are satisfied upon 
a careful examination of all the cases decided in the State 
Courts of Missouri referred to, that it is now firmly settled 
by the decisions of the highest Court in the State, that Scott 
and his family upon their return were not free, but were, by 
the laws of Missouri, the property of the defendant; and 
that the Circuit Court of the United States had no jurisdic- 
tion, when, by the laws of the State, the plaintiff was a slave, 
and not a citizen. 

"Moreover, the plaintiff, it appears, brought a similar 
action against the defendant in the State Court of Missouri, 
claiming the freedom of himself and his family upon the 
same grounds and the same evidence upon which he relies in 
the case before the Court. 



54 SPEECHES OF WILLL\M ^L\XA\'ELL EVARTS 

"The case was carried before the Supreme Court of the 
State; was fully argued there; and that Court decided that 
neither the plaintiff nor his family were entitled to freedom, 
and were still the slaves of the defendant; and reversed the 
judgment of the inferior State Court, which had given a 
different decision. 

"If the plaintiff supposed that this judgment of the State 
Court was erroneous, and that this Court had jurisdiction 
to revise and reverse it, the only mode by which he could 
legally bring it before this Court, was by writ of error directed 
to the Supreme Court of the State, requiring it to transmit 
the record to this Court. If this had been done, it is too 
l)lain for argument that the writ must have been dismissed 
for want of jurisdiction in this Court. The case of Strader 
and others vs. Graham, is directly in point; and, indeed, inde- 
pendent of any decision, the language of the 25th section of 
the act of 1789 is too clear and precise to admit of contro- 
versy." 

Is it not entirely clear that the same principles of reason- 
ing and construction ap])ly to this case, now before your 
Honors, and that your judgment is not the subject of appeal 
to the Supreme Court of the United States.'' 

Mr. Justice Nelson, on the same point, says: "This ques- 
tion has been examined in the Courts of several of the slave- 
holding States, and different opinions expressed and con- 
clusions arrived at. We shall hereafter refer to some of 
them, and to the principles upon which they are founded. 
Our opinion is, that the question is one which belongs to each 
State to decide for itself, either by its legislature or courts of 
justice; and hence, in respect to the case before us, to the 
State of Missouri — a question exclusively^ of Missouri law, 
and which, when determined by that State, it is the duty of 
the Federal courts to follow. 

"In other words, except in cases where the power is 
restrained by the Constitution of the United States, the 



THE LEMMON SLAVE CASE 55 

law of the State is supreme over the subject of slavery within 
its jurisdiction. 

"As a practical illustration of the principle, we may 
refer to the legislation of the free States in abolishing slavery, 
and prohibiting its introduction into their territories. 

"Confessedly, except as restrained by the Federal Con- 
stitution, they exercised, and rightfully, complete and abso- 
lute power over the subject. Upon what principle, then, 
can it be denied to the State of Missouri.^ The power flows 
from the sovereign character of the States of this Union; 
sovereign not merely as respects the Federal Government — 
except as they have consented to its limitation — but sover- 
eign as respects each other. Whether, therefore, the State 
of Missouri will recognize or give effect to the laws of Illi- 
nois within her territories on the subject of slavery, is a 
question for her to determine. Nor is there any constitu- 
tional power in this government that can rightfully control 
her." 

Now, certainly, if this be good law in favor of slavery, it is 
good law in favor of liberty. The status, slave or free, is the 
same status for consideration and determination, whether 
the judgment be in favor of slavery, or in favor of liberty. 
And when, in behalf of the free State of Illinois, it is claimed 
that it so changes the status of any slave, who may come 
within its borders, that thereafter nothing but positive 
re-enslavement can deprive him of his condition of freedom, 
and the judgment is, that Missouri must determine that 
for itself; when Virginia claims that slaves held lawfully, 
within its limits, may still retain that condition in the State 
of New York, must not the decision be that New York must 
determine that for itself, by its own inherent sovereignty, 
uncontrolled by the Federal Constitution, and that the 
Supreme Court at Washington has no jurisdiction to reverse 
the judgment of this high tribunal.? 



56 SPEECHES OF WILLIAIVI MAXWELL EVARTS 

I read now from the Opinion of Mr. Justice Cami)l)ell : 

"The principles which this Court has pronounced con- 
demn the pretension then made on behalf of the legislative 
department. In Groves vs. Slaughter (15 Pet.), the Chief 
Justice said: 'The power over this subject is exclusively 
with the several States, and each of them has a right to 
decide for itself whether it will or will not allow persons of 
this description to be brought within its limits.' Justice 
McLean said: 'The Constitution of the I'nited States oper- 
ates alike in all the States, and one State has the same power 
over the subject of slavery as every other State.' In Pol- 
lard's Lessee vs. Ilagan (,S How. 212), the Court says: 'The 
United States have no constitutional capacity to exercise 
municipal jurisdiction, sovereignty, or eminent domain, 
within the limits of a State or elsewhere, except in cases 
where it is delegated, and the Court denies the faculty of 
the Federal Government to add to its powers by treaty or 
compact.'" 

So much for the Dred Scott decision, and the opinions 
of the learned Judges who concurred in the judgment then 
pronounced. I have cited passages from their opinions 
above; the whole tenor of the dissenting opinions of Mr. 
Justice ;McI.ean and Mr. Justice Curtis of course carrying 
these principles to even further results. 

The passenger case, the State of Neio York vs. 3Iiln (in the 
11th of Peters) will be found fully to sustain these views. 
The later passenger cases, which fill a great part of the 7th 
of Howard, are much relied upon by the learned counsel for 
the appellants, and references to them are largely spread 
upon his points, with the view of showing that this intro- 
duction of persons into the States, does, in some sort, fall 
within the commercial power of Congress, and that the 
doctrine of these cases, which held invalid the Law of New 
York, and the similar Law of Massachusetts, imposing a tax 
upon the introduction of passengers into those States re- 



THE LEMMON SLA\^ CASE 57 

spectively, has a bearing upon the question at bar. Those 
cases were decided by a Court, as nearly divided as a Court 
of an uneven number can be — five Judges holding the stat- 
utes to be unconstitutional, but solely upon the ground that 
they were, in effect and form, a tax upon commerce. The 
five Judges who concurred in the opinion were Justices 
McLean, Catron, McKinley, Wayne, and Grier. Those 
who dissented were the Chief Justice and Justices Nelson, 
Woodbury, and Daniel. 

But your Honors will perceive that the majority of the 
Court was made by the adhesion of Justice McLean to the 
decision. The Chief Justice manfullv contended that 
the decision in Groves vs. Slaughter had foreclosed the Court 
from considering any question, even as a question of taxa- 
tion, touching the regulation or prevention of the introduc- 
tion of any persons into the States, this being a most sensi- 
tive point with the slaveholding States. Mr. Justice Mc- 
Lean, however, joined in the opinion that it was a tax upon 
commerce, and, in that light alone, regarded the State laws 
as an unconstitutional interference with the commercial 
power of Congress. The criticism which I have made upon 
the composition of the majority of the Court in the instance 
of Justice McLean, will apply to Justice Wayne and the 
other members of the Court from the slaveholding States, 
who never have been doubtful in their opinions or judgments 
upon this exclusive control, by the Slave States, of the whole 
subject of slavery. 

A reference to the opinions of the majority of the Court in 
these cases will show, that it is solely as taxation upon com- 
merce, imposed upon a vessel as it arrives, with its freight of 
passengers on board, that interference with the commercial 
power of the Federal Constitution can be rightfully charged 
upon the State legislation then brought in question. Your 
Honors are aware that the modification of our passenger 
laws, made in consequence of the decisions I have cited, 



58 SPEECHES OF WILLLy^I MAXWELL EVARTS 

have accomplished, in effect, and in result, substantially 
the same security and indemnity to this State, against the 
introduction of burdensome emigrants, as the obnoxious 
laws produced. 

The method now taken exacts a bond that each passenger 
shall not become chargeable upon the State, and then, by a 
general provision, permits in lieu of this bond a moderate 
commutation in money. The Chief Justice in his dissenting 
opinion in these cases, reiterates his opinions so plainlj^ and 
decisively expressed in the cases which I have cited. 

The Chief Justice says: "The first inquiry is, whether, 
under the Constitution of the United States, the Federal 
Government has the power to compel the several States to 
receive, and suffer to remain in association with its citizens, 
every person or class of persons whom it may be the policy 
or the pleasure of the United States to admit. In my judg- 
ment, the question lies at the foundation of the controversy 
in this case. I do not mean to say that the General Gov- 
ernment have, by treaty or act of Congress, required the 
State of Massachusetts to permit the aliens in question to 
land. I think there is no treaty or act of Congress which 
can be justly so construed. But it is not necessary to exam- 
ine that question until we have first inquired whether Con- 
gress can lawiFully exercise such a power, and whether the 
States are bound to submit to it. For if the people of the 
several States of the Union reserved to themselves the power 
of expelling from their borders any person or class of persons, 
whom it might deem dangerous to its peace, or likely to 
produce a physical or moral evil among its citizens, then any 
treaty or law of Congress invading this right, and authoriz- 
ing the introduction of any person or description of persons 
against the consent of the State, would be an usurpation 
of power which this Court could neither recognize nor 
enforce. 

"I had supposed this question not now open to dispute. 



THE LEMMON SLAVE CASE 59 

It was distinctly decided in Holmes vs. Jemison (14 Pet. 540) ; 
in Groves vs. Slaughter (15 Pet. 449); and in Prigg vs. The 
Commonwealth of Pennsylvania (16 Peters, 539). 

"If these cases are to stand, the right of the States is 
undoubted- 

"If the State has the power to determine whether the 
persons objected to shall remain in the State in association 
with its citizens, it must, as an incident inseparably con- 
nected with it, have the right also to determine who shall 
enter. Indeed, in the case of Groves vs. Slaughter, the Mis- 
sissippi Constitution prohibited the entry of the objection- 
able persons, and the opinions of the Court throughout 
treat the exercise of this power as being the same with that 
of expelling them after they have entered. 

"Neither can this be a concurrent power, and whether it 
belongs to the General or to the State Government, the 
sovereignty which possesses the right must in its exercise 
be altogether independent of the other. If the United 
States have the power, then any legislation by the State in 
conflict with a treaty or act of Congress would be void. 
And if the States possess it, then any act on the subject by 
the General Government, in conflict with the State law, 
would also be void, and this Court bound to disregard it. 
It must be paramount and absolute in the sovereignty which 
possesses it. A concurrent and equal power in the United 
States and the States as to who should and who should not 
be permitted to reside in a State, would be a direct conflict of 
powers repugnant to each other, continually thwarting and 
defeating its exercise by either, and could result in nothing 
but disorder and confusion. 

"I think it, therefore, to be very clear, both upon princi- 
ple and the authority of adjudged cases, that the several 
States have a right to remove from among their people, and 
to prevent from entering the State, any person, or class or 
description of persons, whom it may deem dangerous or in- 



60 SPEECHES OF WILLIAM MAXWELL EVARTS 

jurious to the interest and welfare of its citizens; and that 
the State has the exchisive right to determine, in its sound 
discretion, wliether the danger does or does not exist, free 
from the control of the General Government." 

This review of the judgments of the Federal Court shows, 
that in whatever ])oints the judgment and doctrines of the 
Supreme Court of the United States, as recently i)ronnilgated, 
may be supposed to be unfavorable to j)ersonal liberty, they 
cannot be charged with being at all inconsiderate of the vital 
and essential point, that within the States the civil and 
social condition of all persons is exclusively governed by 
State authority, excepting only in the precise case of a 
fugitive from labor. In that case the inquiry arises not 
under the commercial clause, nor under the privilege and 
immunity clause, but under the express clause applicable, 
in terms, to the subject. 

Before passing from this topic, I ought, perhaps, to notice 
one suggestion in regard to the construction of this privilege 
and immunity clause, that to give its apparent and natural 
meaning involves an absurdity. It is said for a citizen of 
Virginia to claim, by virtue of that clause, in the State of 
New York, the full privileges of a citizen of New York, 
would include the political rights of a citizen in the govern- 
ment of the State. The very statement of this difficulty 
refutes it. The clause confers or secures no ])rivileges or 
immunities, except so long as the sojourner remains a citizen 
of the State whence he comes. Its operation ceases the 
moment the citizenship of the State into which he has come 
is assumed. It cannot, therefore, clothe the sojourner with 
rights, the exercise of which transmutes him, by the mere act, 
into a citizen of the new State, and, by the same act, divests 
him of his original citizenship. No one can be a citizen of 
two independent sovereignties at the same time. The re- 
quired limitation is found in the terms used, and in the 
nature of the subject to which they are applied. 



THE LEMMON SLA\^ CASE 61 

I now beg to ask the attention of the Court to some cases 
in the Virginia reports of much interest on this subject, of the 
power of a sovereign State over the status of slavery within it, 
and of the limitation of the condition of slavery to that form 
and extent alone, in which it is supported by the positive 
law of the State. The case of Butt vs. Rachel, found in 4 
Munford's Reports, page 209, was decided in 1813, in the 
Court of Appeals of Virginia. The case did not arise under 
the Constitution of the United States, but affirms the gen- 
eral doctrine, that no State, even if it has a status of slavery 
within it, and recognizes such condition in its population as 
lawful and politic, by comity, recognizes the lawfulness within 
its borders of any other than that very slavery which its 
own law creates and upholds. The note of the case is as 
follows : 

*'A native American brought into Virginia since the year 
1691, could not lawfully be held in slavery here; notwith- 
standing such Indian was a slave in the country from which 
he or she was brought." 

Now, this slave introduced into Virginia, and concerning 
whose status this litigation was raised, was brought from the 
island of Jamaica, and was lawfully there a slave in the 
hands of his master. The master coming into Virginia with 
the slave, claimed the right of holding him in slavery there. 
Your Honors will not fail to notice how differently Virginia 
stood in relation to this subject of slavery, from the State of 
New York. Virginia did not proscribe the enslavement of 
Indians as an unlawful source of slavery; on the contrary, 
as your Honors have been informed by the learned counsel 
for the appellants, the comprehension of slavery in Virginia 
embraced the native tribes; many of their number became 
slaves, and now, their descendants form a portion of the 
slave population of Virginia. 

But, in 1691, the colonial government of Virginia passed 
a law, not, in terms, abolishing the system of Indian slavery. 



62 SPEECHES OF WILLIAM MAXWELL EVARTS 

but a law permitting free trade with the Indians. This 
statute was immediately seized upon by the Courts of 
Justice of Virginia, as involving the necessary legal intend- 
ment, that the enslavement of these people, that were thus 
recognized as lawful parties to commercial intercourse, was 
unlawful, such recognition being inconsistent with the 
absolute denial of personal rights, which lay at the founda- 
tion of slavery. 

Here, then, was a question of the hospitality of the laws 
and policy of Virginia, a slaveholding community, to this 
condition, in the person of a slave brouglit within it from 
another slaveholding community. Certainly none of the 
reasons for aversion to, and proscription of, slaver;^, per se, 
could very well apply, on the jjart of Virginia, against per- 
mitting this imported slave of Indian origin to continue a 
slave in Virginia. 

But what was the question? It was, whether there was 
any positive municipal law of Virginia, whereby such a 
status of slavery could be affirmatively maintained, in re- 
spect of such a person, and the Court decided that there was 
not, and that this man, a slave in Jamaica, was free in Vir- 
ginia. No slaves but her own could breathe the air of 
Virginia! The application may seem strange; nevertheless, 
upon the soundest princijiles of jurisprudence, of the slave, 
as well as of the free. States, the judgment was correct. 

The cause was argued by Mr. Wickham and Mr. Wirt, two 
of the ablest lawyers which our country has produced. Mr. 
Wirt, arguing for the freedom of the alleged shive, says: 
"Since 1691 no Indian could be held in bondage. I do not 
contend merely that Indians could not be reduced into 
slavery, but they could not be held as slaves. This was the 
plain consequence of 'free and open trade with all Indians 
whatsoever, at all times and in all places.' It was not 
conferring any boon upon them, l)ut merely acknowledging 
the rights which God and nature gave." 



THE LEMIVION SLAVE CASE 63 

Mr. Wickham in answer seems to have recognized fully 
the general rules of jurisprudence for which I have occasion 
to contend. He says: "Mr. Wirt contends that Indians 
are, naturally, entitled to freedom. So are negroes; but 
this does not prevent their being slaves. I admit the right 
to make them slaves must depend on positive institution. 
What I contend for is, that all persons to whom the general 
provisions of our slave laws apply, may be slaves here, 
provided they were slaves by the laws of the country from 
which they were brought hither." 

In the 2nd of Henning and Munford, in a case decided in 
1808, the same question arose and was thus disposed of in 
the judgment of the Court. "No native American Indian 
brought into Virginia since the year 1691, could, under any 
circumstances, be lawfully made a slave." 

The remaining consideration, if the Court please, to which 
I shall ask j'^our attention, and which will require from me 
some brief illustration, concerns the law of nature and of 
nations, as bearing upon the doctrine of comity. For, 
after all, a support for this hospitality to slavery must be 
looked for from some other source than in the Constitution 
or laws of the United States, or in the decisions of the 
Supreme Court of the United States. No appeal can be 
addressed to this Court, on which to rest their judicial tol- 
eration of slavery, except, first, that the State by its authen- 
tic positive legislation has not proscribed and prohibited 
the temporary allowance of this condition within our ter- 
ritory; or, second, that nothing in the public and general 
law, or in the customs or institutions of this State, has this 
effect. 

This brings me to the third point of my brief, to which I 
respectfully ask the attention of the Court. 

The citation from Story's "Conflict of Laws" is to the 
effect that the whole judicial inquiry open to any court is 
simply, whether in the laws and institutions, social and 



64 SPEECHES OF WILLIAM MAX^VELL EVARTS 

civil, of the State can be found any such principles as make 
it possible or proper, that the rights claimed to be exercised 
during their stay within the State, by transient or other 
residents, not subjects or citizens, should be permitted. If 
the Court find no positive, clear, certain, and explicit ex- 
pression of the public will through the authentic organs of 
its manifestation, it may then explore the regions of general 
jurisprudence and social ethics, to determine whether the 
desired comity can be extended, without injury to the 
policy of the State. The reference to Vattel, under the 
same point gives the view of that eminent publicist upon the 
moral personality of a political society. He says, "Nations 
or States are bodies politic, societies of men united together 
for the purpose of promoting their mutual safety and ad- 
vantage, by the joint efforts of their combined strength. 
Such a society has her affairs and her interests; she deliberates 
and takes resolutions in common, thus becoming a moral 
person, who possesses an understanding and a will peculiar 
to herself, and is susceptible of obligations and rights." 

Your inquiry then is, whether this moral person, the 
State of New York, having an understanding and will of its 
own, after deliberation, and taking resolutions, has or has not 
thought fit to manifest hostility to the institution of slavery. 

The learned counsel for the State of Virginia says, that 
the resolution of 1857, passed by the legislature of this 
State, is not to be taken into account in determining the 
rights of these parties, or the policy and purpose of the 
State of New York on the subject of slavery. Well, as far 
as I can see, this resolution does not really go beyond the 
scope and effect of the legislation of 1830, as modified by the 
amendment of 1841, to which I have called the attention of 
the Court. 

This resolution is certainly very moderate in its phrase, to 
have drawn upon it so severe an epithet from the learned 
counsel in his points, as to characterize it as "a treasonable 



THE LEMMON SLAVE CASE 65 

resolution" ; a phrase which, when used otherwise than in the 
newspapers, or at the hustings, may be supposed to have 
some definite moral, if not legal, force. 

This resolution is simply to this effect: that slavery shall 
not be allowed within our borders, in any form, or under 
any pretense, or for any time, however short. The second 
section of the act of 1830 expressly provides, that nothing 
in the first section thereof (the section prohibiting slavery 
already quoted), shall be deemed "to discharge from service 
any person held in slavery, in any State of the United States, 
under the laws thereof, who shall escape into this State." 
This, certainly, is a loyal and respectful recognition of the 
binding obligation of the Federal Constitution in respect 
to the rendition of fugitive slaves. In this state of our law, 
where is the treason in the resolution of 1857.^ How can 
there be treason without traitors? Who are the traitors? 
Is this a bold figure of speech, or does the learned counsel, 
speaking as the representative, here, of the State of Vir- 
ginia, mean to be understood as imputing treason in act, 
or word, or thought, to the honorable senators and repre- 
sentatives who joined in that legislative resolution? Is it 
just, is it suitable to charge a law, or a resolution of this 
State, with being treasonable, because it does not accord with 
the learned counsel's construction of the meaning and effect 
of the Federal Constitution? 

Were the laws, by which we taxed passengers, treasonable 
laws, because the Supreme Court of the United States held 
that they were unconstitutional? Is a resolution which, 
only by a most extravagant construction, can, in its own 
terms, be tortured into a conflict with the fugitive slave 
clause of the Constitution of the United States, and when 
there stands upon our statute book an express exception of 
the case covered by that clause — is such a resolution to be 
charged with treason? I take it not, and that the epithet 
can only be excused as an unguarded expression. 



66 SPEECHES OF WILLIAM MAXWTLL EVARTS 

But we say, that if the statute cited has not the con- 
struction which we claim for it. and if the resohition of 
1857, so far as the case at bar is concerned, cannot be re- 
garded as indicating to this Court what the disposition of 
this State in respect to slavery is, we say, without and aside 
from such manifest enactment of the sovereign will in the 
premises, as matter of general reason and universal authority, 
the status of slavery is never u})held in the case of strangers, 
resident or in transit, when and where the domestic laws 
reject and suppress such status, as a civil condition or social 
relation. 

The same reasons of justice and policy which forbid the 
sanction of law and the aid of public force to the proscribed 
.v/a/w.? among our own population, forbid tlicni in the case of 
strangers within our own territory. 

The status of slavery is not a natural relation, but is 
contrary to nature, and at every moment it subsists it is 
an ever new and active violation of the law of nature. 

Citations from the "Law of Nature," I am aware, are 
open to the objection of vagueness and impossibility of 
verification, and a grave English judge is said once to have 
discomforted a rhetorical advocate, who appealed fre- 
cjuently to the "book of nature" for his authority, by asking 
for the volume and page. I am fortunate in my present 
appeal to the "law of nature," in finding a literal and written 
statement of its proscription of slavery in a document, of 
which I make profert, and of whose "absolute verity," 
as a record, the counsel for the State of \^irginia can hardly 
make question; I mean, to be sure, the Constitution of the 
State of Virginia. It is true the portion of this instrument 
which I shall read, labors under the double opprobrium of 
having been originally written when men's minds were in- 
flamed with the love of liberty, at the period of 1776, and of 
bearing the impress of the same pen which drafted the great 
charter of our national existence, the Declaration of In- 



THE LEIMMON SLAVE CASE 67 

dependence. But the force of these aspersions upon its 
credit, let us hope, is somewhat broken by its readoption 
in 1829 and again so late as 1851. 

In the Bill of Rights of the Constitution of Virginia, and 
as its first article we find it thus written: "1. That all men 
are, by nature, equally free and independent, and have certain 
inherent rights, of which, when they enter into a state of 
society, they cannot, by any compact, deprive or divest 
their posterity: namely, the enjoyment of life and liberty, 
with the means of acquiring and possessing property, and 
pursuing and obtaining happiness and safety." 

I may be permitted to observe, in passing, that I find in 
this Virginia "Bill of Rights," a most distinct statement of 
the doctrine I have asserted, as to the absolute and exclusive 
supremacy of its own laws in every State. The text reads 
as follows: "14. That the people have the right of uniform 
government; and therefore that no government separate 
from, or independent of, the Government of Virginia, ought 
to be erected or established within the limits thereof." 

That, I take it, means that the laws or customs of no other 
State are to control the status of any person in Virginia, 
for any length of time, or under any circumstances, but 
unijormity must prevail in the laws and in their adminis- 
tration. 

I find, too, in this instrument the best evidence, that the 
statesmen of Virginia felt no such contempt for "general 
principles" and their practical influence in the conduct of 
society, in the framing of government, the enacting and ad- 
ministration of laws, as her learned counsel, here, has made 
so prominent. The Virginians were always doctrinarians, 
and liked to see things squarely set forth in black and white. 
The "Bill of Rights" thus teaches the true basis of freedom 
and the best hopes for its security. " 15. That no free 
government, or the blessing of liberty, can be preserved to 
any people, but by a firm adherence to justice, moderation, 



68 SPEECHES OF WILLIAM MAX\^TLL EVARTS 

temperance, frugality and virtue, and by a frequent recur- 
rence to fundamental principles.'' 

But to return to the argument : In dealing with this c}ues- 
tion of comity, we must look with some definiteness at this 
institution of slavery which seeks, however transiently and 
casually, the tolerance of our society, the support of our law. 
We must look slavery square in the face. Certainly, no man 
could be braver than the learned counsel in the moral, social, 
juridical, and legal princij^les which he avows. Yet, I notice 
that, upon his points, and in his speech, he a little prefers to 
glide off from the name "slaves" to that of "servants," and 
from "slavery" to "puj)ilage." 

Now, if we are to determine whether it consists with the 
spirit of our institutions, with the purity of our justice, to 
tolerate and enforce, at all, the system of slavery, let us see 
what it is. 

We all agree, I suppose, that slavery, that is, chattel 
slavery, the institution in question, finds neither origin nor 
home in any nation, or in any system of jurisprudence, gov- 
erned by the common law. Among barbarous nations, 
without law or system, slavery exists, and is maintained by 
mere force. Among civilized nations it is the creature of 
the ciril law. From an elementary book of acknowledged 
authority, Taylor's "Elements of the Civil Law" (page 429), 
I beg to read a concise view of the characteristic traits of 
this institution. "Slaves were held pro nullis, pro mortuis, 
pro quadrupedibus." That is to say they were looked 
upon as no persons; as those in whom human personality was 
dead; as beasts. "They had no head in the State, no name, 
title or register; they were not capable of being injured; 
nor could they take by purchase or descent; they had no 
heirs and therefore could make no will; exclusive of what 
was called their peculium, whatever they acquired was their 
master's; they could not plead, nor be pleaded for, but were 
excluded from all civil concerns whatever; they could not 



THE LEMMON SLAVE CASE 69 

claim the indulgence of absence reipiiblicae causa; they were 
not entitled to the rights and considerations of matrimony, 
and, therefore, had no relief in case of adultery; nor were 
they proper objects of cognation or affinity, but of quasi 
cognation onlj^; they could be sold, transferred or pawned 
as goods or personal estate, for goods they were and as such 
they were esteemed." 

The laws of the slaveholding States, while they concur 
in degrading slaves from persons into things, differ in the 
rules of conveyance and of succession pertaining to them as 
property. In Louisiana and in Kentucky thej^ are governed, 
in these respects, by the rules pertaining to real estate. In 
most, if not all, of the other States, they are, in all respects, 
chattels; as, for instance, in South Carolina, where the law 
declares, "Slaves shall be deemed, sold, taken, reputed, and 
adjudged in law to be chattels personal in the hands of their 
owners and possessors, and their executors, administrators 
and assigns, to all intents, constructions and purposes what- 
soever." 

(2 Brev. Dig. 229. Prince's Dig. 446. Thompson's 
183.) 
Such, then, is slavery, the status now under consideration. 
Such it continues to be, in all essential traits, while it pre- 
serves its identity. It needs positive statutes to relieve 
it materially from any of these odious traits, to raise the 
slave into any other condition than that of being no person. 

When, therefore, we say that slavery is "just, benign and 
beneficent," if we have due regard to the appropriate use of 
words, we mean that that condition, that relation of man 
to man, is "just, benign and beneficent." 

Horrible it is, says the learned counsel, if it be main- 
tained between men of the same race — lamentable, if it be 
maintained toward men like the Indian, for whom some 
sentiment may be exhibited; but it is "just, benign and 
beneficent," if applied to the negro. 



70 SPEECHES OF WILLIAM MAXWELL EVARTS 

This is the condition of slavery, concerning whose toler- 
ance within this State your Honors are to determine, whether 
the system and order of society in this State permit you, 
as judges and magistrates to entertain, to maintain, to en- 
force it. I know of no reported case, in which this true 
character of slavery, in its just, legal lineaments, is more 
fairly and candidly considered, in a Slave State, or in a 
Free State, than in the case of The State vs. Mann, 
2d Devereux's Reports, ])age 268. 

The Supreme Court of North Carolina there gives a very 
careful and deliberate judgment, upon the essential relations 
between master and slave as established by their laws, as a 
matter of judicial limitation, and recognition. In deliver- 
ing the opinion. Judge Ruflin, one of the ablest judges of 
that State, or of this country, was obliged to say what the 
nature of slavery was, in respect to the right of the master, 
and the subjection of the slave. How this case arose and how 
necessary it was to meet the questions discussed, the Court 
will perceive from the very brief narrative which prefaces 
the case. 

"The defendant was^ indicted for an assault and battery 
upon Lydia, the slave of one Elizabeth Jones. On the trial 
it appeared that the defendant had hired the slave for a 
year — that during the term the slave had committed some 
small ofTence, for which the defendant undertook to chastise 
her — that while in the act of so doing, the slave ran off, 
whereupon the defendant called upon her to stop, which 
being refused, he shot at and wounded her. 

"His Honor, Judge Daniel, charged the jury, that if they 
believed the punishment inflicted by the defendant was 
cruel and unwarrantable, and disproportionate to the offence 
committed by the slave, that in law the defendant was 
guilty, as he had only a special property in the slave. A 
verdict was returned for the State, and the defendant ap- 
pealed." 



THE LEIVIMON SLA\T CASE 71 

Ruffin, Judge. "A judge cannot but lament, when such 
cases as the present are brought into judgment. 

"It is impossible that the reasons on which they go can 
be appreciated, but where institutions similar to our own 
exist, and are thoroughly understood. The struggle, too, 
in the judge's own breast, between the feelings of the man 
and the duty of the magistrate, is a severe one, presenting 
strong temptation to put aside such questions if it be pos- 
sible. It is useless however to complain of things inherent 
in our political state. And it is criminal in a court to avoid 
any responsibility which the laws impose. With whatever 
reluctance therefore it is done, the Court is compelled to 
express an opinion upon the extent of the dominion of the 
master over the slave in North Carolina. 

"The indictment charges a battery upon Lydia, a slave of 
Elizabeth Jones. Upon the face of the indictment, the 
case is the same as the State vs. Hale, 2d Hawks, 582. No 
fault is found with the rule then adopted; nor would be, if 
it were now open. But it is not open; for the question, as it 
relates to a battery on a slave by a stranger, is considered as 
settled by that case. But the evidence makes this a dif- 
ferent case. Here a slave had been hired by the defendant, 
and was in his possession, and the battery was committed 
during the period of hiring. 

"With the liabilities of the hirer to the general owner for 
an injury permanently impairing the value of the slave, 
no rule now laid down is intended to interfere. That is 
left upon the general doctrine of bailment. 

"The query here is, whether a cruel and unreasonable 
battery on a slave, by the hirer, is indictable. The judge 
below instructed the jury that it is. 

"Upon the general question, whether the owner is an- 
swerable, criminaliter, for a battery upon his own slave, or 
other exercise of authority or force, not forbidden by statute, 
he Court entertains but Httle doubt. That he is so liable 



72 SPEECHES OF WILLIAM IMAX^VELL EVARTS 

has never yet been decided; nor, as far as is known, been 
hitherto contended. There have been no prosecutions of 
the sort. The estabhshed habit and uniform custom of the 
country in this respect is the best evidence of the portion 
of power, deemed by the whole community requisite to the 
preservation of the master's dominion. If we thought dif- 
ferently, we could not set our notions in array against the 
judgment of everybody else, and say that this or that au- 
thority may be safely lopped off. This has indeed been 
assimilated at the bar to the other domestic relations, and 
arguments drawn from the well established principles which 
confer and restrain the authority of the parent over the 
child, the tutor over the pupil, the master over the ap- 
prentice, have been pressed on us. The Court does not 
recognize their application. There is no likeness between 
the cases. They are in opposition to each other, and there 
is an impassable gulf between them. The difference is that 
which exists between freedom and slavery, and a greater 
cannot be imagined. In the one, the end in view is the 
happiness of the youth, born to equal rights with that gov- 
ernor, on whom the duty devolves of training the young to 
usefulness, in a station which he is afterward to assume 
among freemen. To such an end, and with such an object, 
moral and intellectual instruction seem the natural means; 
and for the most part they are found to suffice. Moderate 
force is superadded only to make the others effectual. If 
that fail, it is better to leave the party to his own head- 
strong passions and the ultimate correction of the law, than 
to allow it to be immoderately inflicted by a private person. 
With slavery it is far otherwise. The end is the profit of 
the master, his security and the public safety; the subject, 
one doomed, in his own person and his posterity, to live 
without knowledge, and without the capacity to make any- 
thing his own, and to toil that another may reap the fruits. 
What moral considerations shall be addressed to such a 



THE LEMMON SLAVE CASE 73 

being, to convince him of what it is impossible but that the 
most stupid must feel and know can never be true — that 
he is thus to labor upon a principle of natural duty, or for 
the sake of his own personal happiness. Such services can 
only be expected from one who has no will of his own; who 
surrenders his will in implicit obedience to that of another. 
Such obedience is the consequence only of uncontrolled 
authority over the body. There is nothing else which can 
operate to produce the effect. The power of the master 
must be absolute, to render the submission of the slave per- 
fect. I most freely confess my sense of the harshness of this 
proposition; I feel it as deeply as any man can. And as a 
principle of moral right, every person in his retirement must 
repudiate it. But in the actual condition of things it must 
be so. There is no remedy. This discipline belongs to the 
state of slavery. They cannot be disunited without abro- 
gating at once the rights of the master, and absolving the 
slave from his subjection. It constitutes the curse of 
slavery to both the bond and free portions of our population. 
But it is inherent in the relation of master and slave. 

"That there may be particular instances of cruelty and 
barbarity, where in conscience the law might properly inter- 
fere, is most probable. The difficulty is to determine where 
a court may properly begin. Merely in the abstract it may 
well be asked, which power of the master accords with right. 
The answer will probably sweep away all of them. But 
we cannot look at the master in that light. The truth is, 
that we are forbidden to enter upon a chain of general rea- 
soning on the subject. We cannot allow the right of the 
master to be brought into discussion in the courts of justice. 
The slave, to remain a slave, must be made sensible that 
there is no appeal from his master; that his power is in no 
instance usurped; but is conferred by the laws of man, at 
least, if not by the laws of God. 

*'I repeat that I would gladly have avoided this ungrateful 



74 SPEECHES OF AMLLLAJM MAX^VELL EVARTS 

question. But being brought to it, the Court is compelled 
to declare, that while slavery exists amongst us in its present 
state, or until it shall seem fit to the Legislature to interpose 
express enactments to the contrary, it will be the imperative 
duty of the judges to recognize the full dominion of the 
owner over the slave, except where the exercise of it is for- 
bidden by statute. And this we do upon the ground, that 
this dominion is essential to the value of slaves as projjerty, 
to the security of the master and the public tranquility, 
greatly dependent upon their subordination, and in fine, as 
most effectually securing the general protection and com- 
fort of the slaves themselves. 

''Per Curiam. Let the judgment below be reversed and 
judgment entered for the defendant." 

Now, this is a very gloomy view of slavery. It is how- 
ever the only view that is permissible of this institution, as 
a matter of legal jjower and legal subjection between the 
parties to it. and it comes precisely to this, that the slave, 
before the law, has ?w rights at all, no more than any mere 
thing, that, by the law of nature, is subject to the dominion 
of man. If, indeed, the slave be cruelly injured, as matter 
of his master's property, then an action for damages will lie, 
governed, as the Court says, by the "law of bailment." 
If the State as matter of public policy, chooses to make acts 
committed in respect to the slave, criminal, it may do so, 
just as it may acts of malicious mischief in respect of an in- 
animate substance; as it may protect trees planted in the 
highway against depredation or injury, or as it may pro- 
tect public grounds from intrusion or defilement. In such 
cases an indictment under the statute will lie, because the 
State has so declared. But there is no recognition or com- 
prehension of the slave, as respects rights or remedies for him- 
self, within any of the moral, social and human relations 
that govern duties or rights between person and person. 
When, therefore, we are asked to be hospitable in feeling, in 



THE LEMMON SLA\T: CASE 75 

speech, or in law, to slavery we must take it as it is, and with 
the traits which are inseparable from it, and which, as the 
Court, in the case cited, say, cannot be abrogated without 
destroying the relation between master and slave, for they 
exist in the relation itself. 

Now, I say, that all history and all jurisprudence show 
that slavery originated in the mere predominance of physical 
force of one man over another. That, I take it, must be 
conceded. It is equally indisputable that it is continued 
by mere predominance of physical force, or of social force, 
in the shape of municipal law. Whenever this force fails 
at any stage, then the status falls, for it has nothing to rest 
upon. When the stranger comes within our territory, and 
seeks to retain in slavery a person that he claims to be subject 
to his dominion, he must either rely upon his own personal 
force, or he must appeal to some municipal law, which sus- 
tains that relation by the pressure of its force. When such 
a claim is made in this State, our answer is that he has 
brought with him no system of municipal law, to be a weapon 
and a shield to this status, and he finds no such system here. 
Where does he find it? We have no such system. We know 
of no such relations. His appeal to force against nature, to 
law against justice, to might against right, is vain, and his 
captive is free. 

In Neal vs. Farmer (9 Georgia Reports, page 555), the 
Court will find a distinct adoption of this view, that the 
title of the slave-owner to his slave is of the kind that I have 
stated, derived from, and maintained by, force. • Indeed, 
that the planter's title is but the title of the original captor. 
The action was brought by Nancy Farmer against William 
Neal to recover damages for the killing of a negro slave, 
the property of Mrs. Farmer. On the trial, the plaintiff 
proved the killing and closed. The jury found a verdict for 
plaintiff for $825. An objection was made to the legality of 
the verdict on the ground that, in cases of felony the civil 



16 SPEECHES OF WILLIAM! MAX\VELL EVARTS 

remedy is suspended until the offender is prosecuted to 
conviction or acquittal. This principle was admitted, but 
the Court below held that the killing- of a slave was not a 
felony at common law, and refused a new trial. The ques- 
tion of law was brought before the Supreme Court by writ 
of error. 

The Court held, "In cases of felony, the civil remedy is 
suspended until the offender is prosecuted to conviction or 
acquittal. It is not felony in Georgia, by the common law, 
to kill a slave, and the only legal restraint upon the power 
of a master over the person of the slave in Georgia, is such as is 
imposed by statute." 

At page 580 of the report, the learned Court proceeds: 
"Licensed to hold slave property, the Georgia planter held 
the slave as a chattel; and whence did he derive title? 
Either directly from the slave trader, or from those who 
held under him, and he from the slave captor in Africa. 
The property in the slave of the planter, became, thus, 
just the property of the original captor. In the absence of 
any statutory limitation on that property he holds it as un- 
qualifiedly as the first proprietor held it, and his title and 
the extent of his property were sanctioned by the usage of 
nations which had grown into a law. 

"There is no sensible account to be given of property in 
slaves here but this. What were then the rights of the 
African Chief in the slave which he had captured in war.^ 
The slave icas his to sell, or to give, or to kill. " 

The law of nations built upon the law of nature, has 
adopted this same view of the status of slavery, as resting on 
force against right, and finding no support outside of the 
jurisdiction of the municipal law which establishes it. 

Now it is very easy to say, as is said by the learned counsel 
in his points, that we are not justified in prohibiting the 
slave-owner from any State of the Union, from bringing 
his slaves hither, and it may be urged that there is no disturb- 



THE LE^IMON SLAVE CASE 77 

ance of our public peace, and no encroachment upon the 
pubHc morals, or upon social and political principles of this 
community, in allowing the slave-owner to bring his slaves 
hither, in allowing them to remain here, and in allowing him 
to take them away. 

But this is not a correct statement of the proposition. It 
is not a question of the officious interference of our law with 
the agreeing dispositions of the master and his slaves for the 
maintenance of the relation. The question in form and 
substance is, what is the duty of our law, what its authority, 
what are its powers and processes, what the means and the 
principles of enforcing it, in case this amicable agreement be- 
tween master and slave shall, at any point of the contin- 
uance of the status in our community, cease. This was the 
point with Lord Mansfield in the case of Sommersett. Lord 
Mansfield, if he has been sainted by philanthropists, as the 
learned counsel has said, for his devotion to liberty, as 
exhibited in the case of Sommersett, very little deserves 
such peculiar veneration. Lord Mansfield tried as hard as 
a judge ever did to avoid deciding that case; he was held as 
firmly by habit, by education, by principle, by all his rela- 
tions with society, to what would be called, in the phrase of 
our day, a conservative and property view of the subject, as 
any man could be. It is amusing to follow the report in the 
State Trials, and see how the argument was postponed, 
from time to time, on a suggestion thrown out by the Court, 
of the immense influence on property that the decision in 
the particular case would have. If your Honors please, at 
the time the point was raised before Lord Mansfield, there 
were within the realm of England fourteen thousand slaves, 
brought from the plantations and held, without a suspicion 
of their right by their masters, under the professional opinions 
of the eminent lawyers, Sir Charles York and Lord Talbot, 
that the Virginia negro might be law^fully held as a slave 
within the realm of England, But, notwithstanding all the 



78 SPEECHES OF WILLIAISI MAXWELL EVARTS 

suggestions of the Court, for some reason or other, it was 
not thought useful or proper to cover up, or to buy up this 
question of personal liberty on English soil and under Eng- 
lish law. Then, Lord Mansfield, being as my learned friend 
has suggested, a mere common law judge in a mere common 
law court, being the Chief Justice of England, a great magis- 
trate, the head of the Court to which was committed the 
care and protection of the personal rights of the conununity, 
as established and regulated and defended by the law of the 
realm, was obliged, by the mere compulsion of his reason, to 
decide that case as he did. There is no poetry, no sentiment, 
no philanthropy, no zeal, no desire to become a subject of 
saint-hood with future generations, to be found in his deci- 
sion. Not one word of any of these. It was extorted in 
submission to the great powers of his own reason. He says, 
most truly, that the difl^culty is, that if slavery be intro- 
duced and sustained at all, it must be introduced and 
sustained according to its length and breadth, with all its 
incidents and results, and if our law recognizes it, then we 
must adopt and administer some system of positive mun- 
icipal law, external to our own, for we have no such 
domestic status in our own society. Therefore, says Lord 
Mansfield, if the merchants will not settle this case, if no 
appeal to Parliament for legislation on the subject will be 
made, and if I must decide it, I do not know of any law of 
England which permits the master of this vessel, on which 
the slave Sommersett is embarked, to hold him in confine- 
ment, and he must be set free. And the Court below was 
asked to say in this State, "does the law of New York furnish 
any ground and authority by which it can permit, or sustain, 
or enforce the restraint upon the liberty of these Virginia 
negroes, in the city of New York, practiced by this man and 
woman, Mr. and Mrs. Lemmon.''" 

Now, it will readily be seen, as suggested (under subdivi- 
sion D of my third point), that this consequence must follow; 



THE LEMMON SLAVE CASE 79 

for the idea that our law can have a mere let alone policy, 
can leave these people to manage the affair among them- 
selves, is precluded the moment the process of Habeas Cor- 
pus has brought them within the control of the magistrate. 
Certainly, we have no law to prohibit the master and mis- 
tress from coming here with their faithful servants, from re- 
maining here peaceably under this tie of fidelity, and leaving 
here under the same tie of fidelity. 

If there is no writ of Habeas Corpus sued out, if no action 
of false imprisonment is brought, no complaint for assault 
and battery is made, and nothing comes up for judicial in- 
quiry, then this contented "pupilage" — this relation of 
"honorable slaveholder to devoted and attached slaves" is 
not interfered with by us. When liberty was awarded to 
these eight persons they were not prohibited from going back 
to No. 8 Carlisle street, to the dominion of the Lemmons, or 
from embarking on a steamship for a voyage to Texas. All 
the judgment declares is, that, if you are restrained by force, 
and againstyouT will, there is no such restraint allowed by law. 

The question is, as Lord Mansfield says, what the law 
shall do, when its force and authority are invoked. It is 
the same practical difficulty that arose under Dogberry's 
instructions to the watch: "This is your charge; you shall 
comprehend all vagrom men. You are to bid any man stand, 
in the prince's name." "How," inquires the watch not im- 
pertinently, "how, if he will not stand.'*" Dogberry bravely 
meets the emergency. "Why, then take no note of him, 
but let him go; and presently call the rest of the watch to- 
gether, and thank God you are rid of a knave." Whoever, 
in the name of our law, undertakes to maintain a slave's 
subjection, will find no wiser counsel than Dogberry's to 
follow, if the slave objects to his authority. 

The train of consequences which must follow from the 
recognition of slavery by our law, as a status within our 
territory, I have illustrated by a few instances or examples. 



80 SPEECHES OF WILLIAM I^IAXWELL EVARTS 

under subdivision D of my third point. I will not enlarge 
upon them. Certainly I take no pleasure in repeating them 
for any purposes of sarcasm or invective. 

I pass now to a subject, considered in distinct propositions 
upon my points, and concerning which the course of my 
learned friend's argument requires a few observations from 
me. I refer to the proposition, that the rule of comity 
which permits the transit of strangers and their property 
through a friendly State, does not require our laws to uphold 
the relation of slave-owner and slave, within our State, be- 
tween strangers. By that general system of juris})rudence 
made up of certain principles held in common by all civil- 
ized States, known as the "Law of Nations," in one of the 
senses in which the term is used by publicists, men are not 
the subject of property. This proposition the learned 
counsel has met by the argument, that property does not 
exist, at all, by the law of nature, but is wholly the growth of 
civil society and the creature of positive or municipal law. 
If he means by this argument, that the title of an individual 
to a particular item or subject of property, is not completely 
ascertained or established by the law of nature; that I do 
not make title to the house in which I live, or the books which 
I read, by the law of nature, I have no dispute with him. 
But, if he means, that the distinction between man as the 
owner, and things as the subjects, of property, does not arise 
by the law of nature, he is, I think, entirely in error. I 
suppose that the relation of man, as Lord over all ranks of the 
brute creation and all inanimate things in this world, is 
derived from nature, as by direct grant from the Almighty 
Creator of the world and all things therein; that by this 
law, the relations of persons to things, which is but another 
name for the institution of property, is a natural relation. 
If it is not a natural relation — if it does not spring out of the 
creation of man, and his being placed on this earth by his 
Maker, I do not understand its origin. 



THE[LEMMON SLAVE CASE 81 

When we accord to strangers a transit through out terri- 
tory, with property, we limit that right to what is the sub- 
ject of property by the law of nature, unless our municipal 
law recognizes property other than such as the law of nature 
embraces. 

But further, the learned counsel has argued, that, because 
we recognize, under the general principles of comity, certain 
rights that grow out of the condition of slavery, under the 
foreign municipal system, which accredits and supports it, 
we are involved in the obligation of not imputing immorality 
to that relation, and, that, upon the same reasons or induce- 
ments of comity, by which we recognize these rights thus 
grown up, we must enforce and maintain the condition itself 
in our own municipal system. If the Court please, we 
ought not to be called upon to confound propositions nat- 
urally so distinct as these, and which, I respectfully submit, 
are justly discriminated upon my printed brief, under sub- 
division F of the third point. We recognize, unquestion- 
ably, the establishment of slavery in Virginia as the lawful 
origin of certain rights, and open our Courts to the main- 
tenance and enforcement of those rights. As the learned 
counsel has said, if upon the sale of a slave in Virginia a 
promissory note be taken by the vendor, and suit brought 
upon it in our Courts, the action would be sustained; the 
security would not be avoided as founded upon an immoral 
or illegal consideration. Nay, further than that. Suppose 
the relation of master and slave, once lawfully subsisting in 
Virginia, to have ceased and the slave to have become free* 
by manumission, or otherwise; suppose the freedman to 
have become an inhabitant of our State, and finding his 
master accessible to process here, to have sued him for wages, 
for the service in Virginia, while a slave, alleging that he had 
performed labor and had been paid nothing for it. By our 
law no such action would lie. No debt accrued by the law 
of Virginia, and that law must give the right, before our law 



82 SPEECHES OF WILLIAM MAXWELL EVARTS 

can afford a remedy. We might suppose the relation to have 
terminated advantageously to the master, the slave having 
been a charge and burden upon the master beyond any serv- 
ice he could render. The slave, become free, and found 
here in the possession of property, could the master sue him 
here for his support, during the time that, without being 
remunerated by his labor, he had maintained, fed, clothed 
and cared for him? Certainly, no such action could be sus- 
tained. Apply these principles to the ordinary domestic 
relations, and there is no mystery in this distinction. We 
recognize a foreign marriage, good, according to the laws 
of the community in which it is celebrated, as giving title to 
property here, in this State, real or personal, dependent upon 
that relation. When a husband and wife, united under a for- 
eign marriage, come here, we recognize their relation as hus- 
band and wife, with such traits and consequences as accord 
with our laws. But suppose a man to have married a wife 
in Massachusetts, and that by the law of Massachusetts, 
while the parties continue there, the husband has the sup- 
posed common law right to beat his wife with a stick no 
bigger than his thumb; suppose this a trait of the con- 
jugal relation, a marital right in Massachusetts. Now, the 
claim of the learned counsel is, not only that we should ac- 
cord to the relation of marriage arising under the law of 
Massachusetts, consequences in respect of property here, 
which belong to the relation, but, that, when husband and 
wife come here, as residents or, at least, in transitu, we should 
allow this special marital right to continue, and be exercised 
under our law here, although unlawful between husband 
and wife by our laws. The absurdity of such a claim strikes 
everyone. If the husband pleaded, as a defence against 
punishment here, that by the law of Massachusetts, where 
the marriage was instituted, the violent acts were permitted, 
no Court would tolerate so idle and frivolous a suggestion. 
The relation of master and apprentice presents a nearer 



THE LEMMON SLA\^ CASE 83 

analogy to that of slavery than any civil relation now rec- 
ognized by our law. It is wholly the creature of positive 
statute, and we take no notice whatever of the relation, of 
the same name and substance, established by the laws of the 
other States of the Union, as giving any personal status within 
our territory. A master and his apprentice coming here 
from Connecticut, in the judgment of our law, no longer 
hold that relation to each other. Our law furnishes no aid 
to the master's authority, no compulsion upon the appren- 
tice's obedience. 

The learned counsel, in his plea for your indulgence to 
the institution of chattel slavery, has thought to disparage 
the great names in the British judiciary which have pro- 
scribed that condition as unworthy to be tolerated by their 
laws, by holding up to odium the system of 2vhite slavery, 
which, under the name of villenage, long ago subsisted in 
England. 

However nearly the traits of this servitude may, at one 
time or another, have resembled the system of slavery 
which finds support and favor in parts of our country, 
there was always this feature of hope and promise of the 
amelioration and final extirpation of villenage, which will be 
sought in vain in the system of slavery in our States. Vil- 
lenage was within the comprehension and subject always 
to the influences of the common law, which, indeed, is but 
another name for common right and general justice. No 
system of injustice and of force brought within the grasp of 
the principles of the common law, but must, sooner or later, 
be vanquished and exterminated. The heaviest gloom which 
rests upon the system of chattel slavery comes from this 
very fact, that it is outlawed from all these influences; that 
reason and justice, duty and right, as they reject it, are re- 
jected by it, and find no inlet through the proof armor of 
force and interest in which it is cased. 

The learned counsel has remarked upon the silent and 



84 SPEECHES OF AA^ILLIAM IVIAXWELL EVARTS 

gradual retreat of villenage before the growing power of 
justice and civilization, till it finally disappears from Eng- 
lish history, one scarcely knows when. It wore out, he says, 
without bloodshed, without yiolence, without ciyil or social 
disturbance or disquiet. It is not strictly true that villenage 
was never the cause of serious civil disorder in England. 
Jack Cade's rebellion and Wat Tyler's insurrection were, 
really, servile insurrections to which intolerable oppression 
had urged this abject class. But be this as it may, the 
learned counsel's complacency, first in the long endurance 
of villenage, and, second, in its peaceful abrogation, has not 
restrained him from a sarcastic suggestion, that if there had 
been in England "a sect of abolitionists" hostile to villenage, 
that system would have survived to our day. If the ten- 
dency and effect of the teaching of this "sect of abolitionists" 
be, indeed, to confirm and i)erpetuate the system of slavery, 
it should attract the favor rather than the wrath of one, who, 
like my learned friend, thinks slavery to be "just, benign, 
beneficent, not inconsistent with strict justice, and ])ure 
benevolence." 

But I can relieve the learned counsel from any doubt or 
uncertainty as to the efficient influences which caused the 
decay and final extinction of villenage in England. They 
were the common law and the Christian religion. 

The common law, having, as I stated, comprehended villen- 
age within its principles and processes, showed it no quarter, 
but by every act and contrivance reduced it to narrower and 
narrower limits. It admitted no intendments in its favor, 
gave every presumption against it; knew no mode to make 
a villein of a freeman, a hundred to convert a villein into a 
freeman. Mr. Hargreave, in his celebrated argument in 
Sommersett's case, gives a just account of these successful 
efforts of the common law. "Another cause," says this 
eminent lawyer, "which greatly contributed to the extinc- 
tion of villenage, was the discouragement of it by courts 



-THE-LEMMON SLAVE CASE 85 

of justice. They always presumed in favor of liberty, 
throwing the 'oniis probandi' upon the lord, as well in the 
writ of Homine Replegiando, where the villein was plaintiff, 
as in the Nativo Habendo, where he was defendant. Non- 
suit of the lord after appearance in the Nativo Habendo, 
which was the writ for asserting the title of slavery, was a 
bar to another Nativo Habendo, and a perpetual enfranchise- 
ment; but nonsuit of the villein after appearance in a 
Libertate Probanda, which was one of the writs for asserting 
the claim of liberty against the lord, was no bar to another 
writ of the like kind. If two plaintiffs joined in a Nativo 
Habendo, nonsuit of one was a nonsuit of both; but it was 
otherwise in a Libertate Probanda. The lord could not 
prosecute for more than two villeins in one Nativo Habendo; 
but any number of villeins of the same blood might join 
in one Libertate Probanda. Manumissions were inferred 
from the slightest circumstances of mistake or negligence in 
the lord, from every act or omission which legal refinement 
could strain into an acknowledgment of the villein's liberty. 
If the lord vested the ownership of lands in the villein, 
received homage from him, or gave a bond to him, he was 
enfranchised. Suffering the villein to be on a jury, to enter 
into religion and be professed or to stay a year and a day 
in ancient demesne without claim, were enfranchisements. 
Bringing ordinary actions against him, joining with him in 
actions, answering to his action without protestation of 
villenage, imparling in them or assenting to his imparlance, 
or suffering him to be vouched without counter-pleading the 
voucher, were also enfranchisements by implication of law. 
Most of the constructive manumissions I have mentioned 
were the received law, even in the reign of the first Edward. 
I have been the more particular in enumerating these instances 
of extraordinary favor to liberty, because the anxiety of our 
ancestors to emancipate the ancient villeins so well accounts 
for the establishment of any rules of law calculated to obstruct 



86 SPEECHES OF WILLIAM ]NL\XWELL EVARTS 

the introduction of a new stock. It was natural, that the same 
opinions, which influenced to discountenance the former, 
should lead to the prevention of the latter." 

The other operative agency in the gradual extinction of the 
offensive system of villenage was the influence of the Christian 
religion, under the auspices of the church of Rome, then, as 
well, the national church of England. Macaulay thus ascribes 
the chief merit in this beneficent social reform to the Romish 
priesthood. "It is remarkable that the two greatest and 
most salutary social revolutions which have taken place in 
England, that revolution, which, in the thirteenth century, 
put an end to the tyranny of nation over nation, and that 
revolution which, a few generations later, put an end to the 
property of man in man, were silently and imperceptibly 
effected. They struck contemporary observers with no sur- 
prise, and have received from historians a very scanty meas- 
ure of attention. They were brought about neither by 
legislative regulation nor by physical force. Moral causes 
noiselessly effaced, first the distinction between Norman 
and Saxon, and then the distinction between master and 
slave. None can venture to fix the precise moment at 
which either distinction ceased. Some faint traces of the 
old Norman feeling might perhaps have been found late in 
the fourteenth century. Some faint traces of the institu- 
tion of villenage were detected by the curious so late as the 
days of the Stuarts; nor has that institution ever, to this 
hour, been abolished by statute. 

"It would be most unjust not to acknowledge that the 
chief agent in these two deliverances was religion; and it may, 
perhaps, be doubted whether a purer religion might not have 
been found a less eflBcient agent. The benevolent spirit of 
the Christian morality is undoubtedly adverse to distinc- 
tions of caste. But to the church of Rome such distinctions 
are peculiarly odious, for they are incompatible with other 
distinctions which are essential to her system." "How 



THE LEMMON SLAVE CASE 87 

great a part the Catholic ecclesiastics had in the abolition 
of villenage, we learn from the unexceptionable testimony 
of Sir Thomas Smith, one of the ablest counsellors of Eliza- 
beth. When the dying slaveholder asked for the last sacra- 
ments, his spiritual attendants regularly adjured him, as he 
loved his soul, to emancipate his brethren, for whom Christ 
had died. So successfully had the church used her formid- 
able machinery, that before the Reformation came, she had 
enfranchised almost all the bondmen in the kingdom, except 
her own, who, to do her justice, seem to have been very ten- 
derly treated." (Hist. Eng., vol. 1, pp. 20, 21.) 

These influences, then, of law and of religion were the 
efficient agents in extirpating villenage, a civil condition 
which, so long as it subsisted, was a reproach to the liberty 
of England, and to the principles of the common law. Why 
should the learned counsel hope to heap opprobrium upon 
these principles of justice and religion, when invoked in favor 
of an inferior race, and against a system of slavery so much 
more oppressive than the system of villenage, because our 
people who have espoused and maintain views opposed to 
this present system of wrong against right, and force against 
justice and nature, are the offspring of the British nation, 
which, in the early stages of its civilization, had such a sys- 
tem, or a similar system.'^ If these, our ancestors, and we 
had nourished and developed it, if we had extended it, if 
we had made it the basis of prosperity in England and this 
country, if we had boasted its justice and benevolence, if we 
had extended it so as to embrace more and more of the 
nation, if we had made the law astute and even violent to 
support and maintain it, if we had discouraged every in- 
tendment against it, and if it was now approved and ap- 
plauded as an institution which the civilization and Chris- 
tianity of the present day accept, then we might well be 
accused of inconsistency, in being hostile to chattel slavery 
in the negro race. But, it seems to me, that the influences 



88 SPEECHES OF WILLIAM ^IAX^^^LL EVARTS 

of the common law of England, which we inherit, and of the 
Christian religion, as vindicated in the absolute extirjiation 
of villenage from the social system of England, by peaceful 
means, will suffer no dishonor by performing the same serv- 
ice, and impressing upon the judiciary of this State the 
same principles of absolute inhospitality to negro slavery 
within our borders, even for the briefest period, or over the 
most narrow space. 

If the Court please, the judgment below , llie reasons for 
which are very tersely and properly expressed by the Court 
which pronounced it, is either to be affirmed or reversed. 
You are to declare the law of this State. If you declare that 
slavery may be introduced here, there is no appeal from 
vour decision. If vou hold tliat it mav not be introduced 
here, and affinn the judgment of the Court below, an appeal 
may carry the question to the Supreme Court of the United 
States. That such appeal must be dismissed by that Supreme 
tribunal, for want of jurisdiction of the subject, I confidently 
submit, must follow from the authorities and the principles I 
have had the honor to present to this Court. 

The result of your judgment cannot be doubtful, if I 
am right in the opinion that it is constrained by no para- 
mount control of Federal power. It is as true now, as in 
the time of Littleton and of Coke, that he shall be adjudged 
guilty of impiety toward God and of cruelty toward man, 
who does not favor liberty; and what they, in their day, 
declared of the law of England, your decision shall pronounce 
as the law of New York, that, IN E\^ERY CASE, it shows 
favor to liberty. 

I have, your Honors will bear witness, confined myself in 
this discussion, to mere juridical inquiries, and have strictly 
abstained from any mention of popular or political consid- 
erations. I should not, now, think myself justified in any 
allusions to those considerations, but for the very distinct 
suggestion of the learned counsel, that there was a momentous 



THE LEMMON SLAVE CASE 89 

pressure upon the freedom of your judgments in this matter, 
growing out of a certain formidable, and yet, as he thought, 
inevitable, result to follow from a decision of this question, 
adversely to the views he has had occasion to present. He 
has named to you as the parties to this controversy, the 
State of New York and the State of Virginia — one, first in 
population and in wealth, and greatest in the living energies 
of her people — the other, richest in the memories of the past, 
and most powerful in the voices of her dead. I am not 
aware that the State of New York, in any public act or 
declaration, has failed, to any degree, of that respect for 
Virginia, which belongs to her as a sister State, or as a 
political community. Nor do I know or think that any 
citizens of this State fall at all behind the learned counsel 
in his affection and veneration for the great men in the 
history of Virginia, by whose careers of public service and of 
public honors, she has gained the proud title of the Mother 
of Presidents. Nor do I know that that portion of our 
people, its great majority, who, with their veneration for 
Washington, and Jefferson, and Madison, and Henry, and 
Wythe, and Mason, cherish and defend the opinions upon 
slavery which those statesmen held, honor them or Virginia 
less than those who raise statues of brass or of marble to 
their memory, and follow their principles with contumely 
and persecution. I do not know that an imputation can 
fairly be thrown upon any part of our community, of having 
less respect and affection for our common country and the 
Federal Government than is claimed here, by the learned 
counsel, on behalf of those who, with himself, espouse the 
views concerning the institution of slavery, which he has 
presented to the Court. Yet I understand him distinctly 
to insist here, that, unless this Court shall reverse this judg- 
ment, or unless a Court of paramount authority, that can 
control still further the question, shall reverse it, our Federal 
system of government is actually in danger — that indeed, it 



90 SPEECHES OF WILLIAM ]\L\X>\TLL EVARTS 

cannot long exist, without both a judicial and popular rec- 
ognition of the legal universality of slavery throughout our 
countrv. 

If it please the Court, I am unable to discern in the sub- 
ject itself, or in the aspect of the political affairs of the 
country, any grounds for these alarming suggestions, which 
should disturb, for a moment, your Honors' deliberations 
or determinations on the subject before you. I may be per- 
mitted to say, however, that if the safety and protection of 
this local, domestic institution of slavery, in the communities 
where it is cherished, must ingraft upon our Federal juris- 
prudence the doctrine that the Federal Constitution, by its 
own vigor, plants upon the virgin soil of our common terri- 
tories the growth of chattel slavery — thus putting to an 
open shame the wisdom and the patriotism of its framers — 
if they must coerce, by the despotism of violence and terror, 
into its support at home, their whole white population; if 
they must exact from the Free States a license and a toler- 
ance for what reasons of conscience and of policy have 
purged from their own society, and subjugate to this oppres- 
sion the moral freedom of their citizens; if the institution of 
slavery, for its local safety and protection, is to press this 
issue, step by step, to these results; if such folly and madness 
shall prevail, then, by possibility, a catastrophe may happen: 
this catastrophe will be, not the overthrow of the general 
and constituted liberties of this great nation, not the sub- 
version of our common government, but the destruction of 
this institution, local and limited, which will have provoked 
a contest with the great forces of liberty and justice, which 
it cannot maintain, and must yield in a conflict which it will, 
then, be too late to repress. 



II 

ADDRESS TO THE JURY IN SUMIVflNG UP FOR 
THE PROSECUTION IN THE CASE OF THE 
UNITED STATES AGAINST THE OFFICERS 
AND CREW OF THE SCHOONER SAVANNAH. 
(THE SAVANNAH PRIVATEERS) 

NOTE 

At the very beginning of the Civil War the government of the 
Confederate States issued letters of marque to privateers fitted out 
for the purpose of carrying on warfare against the commercial 
marine of the United States. Theschooner " Savannah" of Charles- 
ton, mounting one pivot gun, was one of these privateers, and for- 
tified with the authority of a letter of marque issued by the Con- 
federate States, began its depredation upon the commerce of the 
United States. 

On the 2nd of June, 1861, the "Savannah" sailed from the port 
of Charleston and on the following day, after having captured a 
brig, laden with a cargo of sugar, was herself taken as prize by 
the United States Brig of War Perry and delivered to the com- 
mander of the United States blockading squadron off Charleston. 
The oflBcers and crew of the "Savannah" were taken in custody by 
the United States naval authorities and in the course of the month 
of June delivered to the United States marshal for the Southern 
District of New York. Upon the application of the District At- 
torney a warrant was issued under which the officers and crew of 
the "Savannah" were committed for trial. 

On the 16th of the following month the Federal Grand Jury, 
sitting in New York, brought in an indictment against them for 
robbery on the high seas — in short for piracy. 

On October 23, 1861, the case came on for trial before Judges 
Nelson and Shipman. Mr. E. Delafield Smith was the United 
States District Attorney and he had as associate counsel, Mr. 
Evarts, Mr. Samuel Blatchford and Mr. Ethan Allen. The 
officers and crew of the "Savannah" were thirteen in number, one 
of whom, however, was used as a witness for the prosecution and 
against him a nolle prosequi was entered. The twelve remaining 

91 



92 SPEECHES OF WILLIAM ]\L\XWELL EVARTS 

prisoners were represented by Mr. Larocque, the elder, Mr. Daniel 
Lord, Mr. James T. Brady, Mr. Algernon S. Sullivan, Mr. Joseph 
S. Dukes, Mr. Isaac Davega and ^Ir. Maurice ^Fayer. 

The trial continued for eight days, resulting in a disagreement 
of the jury. Its conduct on the part of the prosecution was 
wholly in the hands of the District Attorney and ]\[r. Evarts. 
All of the counsel for the })risoners participated actively in the 
trial either in arguing j)oints of law or in opening and summing 
up to the jury. Mr. Larocque opened to the jury for the defense, 
and Messrs. Dukes, Sullivan, Davega and Brady all addressed 
the jury in summing uj). On the close of Mr. Brady's argument — 
October 29 — Mr. Evarts began the closing argument to the jury 
for the prosecution, completing it on the following day. 

The attitude of the Government towards the "insurrection" 
in the southern slaveholding States, withholding as it did every 
recognition of the Confederate States as a separate political body, 
with national traits and functions entitled to cognizance, was 
calculated to bring into the case many questions which had formed 
the topics of political discussion for the previous decade. Thus 
in the defence of the prisoners to sustain the authority under which 
they had acted, their counsel, an array of great lawj'ers, introduced 
the question of the right of secession as it bore upon the title to 
recognition of the Confederate States. How vast a field of history 
and of political science and philosophy was thus explored and, 
wnth great skill and learning, spread before the jury, one may 
readily imagine. 

In all this broad debate the duty devolved upon Mr. Evarts 
to sustain the Government, and a recent writer has said, "His 
argument in this memorable case is really a philosophical dis- 
cussion of the bases of republican government." 

Mr. Evarts, himself, in wTiting to an intimate friend at the time, 
speaks of his participation in the case, saying, "The trial was quite 
a laborious and responsible one for me, and I was retained for the 
Government only the day before the trial began. I had seven 
counsel with seven separate speeches against me, and had to 
reply (1) for the Prosecution, (2) for the Government, (3) for the 
Republican party, (4) for the free States, (5) for the Nation, (6) 
for the principles of Constitutional Government, (7) for the human 
race, and all this though I had a fee only for one of these interests." 



ADDRESS TO THE JURY IN THE CASE OF THE 
SAVANNAH PRIVATEERS 

May it please your Honors, and Gentlemen of the Jury: 

A trial in a Court of Justice is a trial of many things 
besides the prisoners at the bar. It is a trial of the strength 
of the laws, of the power of the Government, of the duty of 
the citizen, of the fidelity to conscience and the intelligence 
of the Jury. It is a trial of those great principles of faith, 
of duty, of law, of civil society, that distinguish the condi- 
tion of civilization from that of barbarism. I know no 
better instance of the distinction between a civilized, in- 
structed. Christian people, and a rude and barbarous nation, 
than that which is shown in the assertions of right where 
might and violence and the rage of passion in physical contest 
determine everything, and this last sober, discreet, patient, 
intelligent, authorized, faithful, scrupulous, conscientious 
investigation, under the lights of all that intelligence with 
which God has favored any of us; under that instruction 
which belongs to the learned and accredited expounders of 
the law of an established free Government; under the aid of, 
and yet not misled by, the genius or eloquence of advocates 
on either side. 

But, after all, the controlling dominion of duty to the men 
before you in the persons of the prisoners, to the whole 
community around you, and to the great nation for which 
you now discharge here a vital function for its permanence 
and its safety, — your duty to the laws and the Government 
of your country (which, giving its protection, requires your 
allegiance, and finds its last and final resting-place, both 
here and in England, in the A'^erdicts of Juries), — your duty 
to yourselves, — requires you to recognize yourselves not 
only as members of civil society, but as children of the 



94 SPEECHES OF WILLIAM MAXWELL EVARTS 

"Father of an Infinite Majesty," and amenable to His 
last judgment for your acts. Can any of us, then, fail to 
feel, even more fully than we can express, that sympathies, 
affections, passions, sentiments, prejudices, hopes, fears, 
feelings and responsibilities of others than ourselv'es are 
banished at once and forever, as we enter the threshold of 
such an inquiry as this, and never return to us until we have 
passed from this sacred precinct, and, with our hands on our 
breasts and our eyes on the ground, can humbly hope that 
we have done our duty and our whole duty? 

Something was said to you, gentlemen of the Jury, of the 
unwonted circumstances of the prosecution, by the learned 
counsel who, many days ago, and with an impressiveness that 
has not yet passed away from your memory, opened on 
behalf of the prisoners the course of this defence. 

He said to you that the number of those whose fate, for 
life or for death, hangs on your verdict, is equal to your own 
— hinting a ready suggestion that that divided responsibility 
by which twelve men may sometimes shelter themselves, in 
weighing in the balance the life of a single man, is not yours. 
Gentlemen, let us understand how much of force and effect 
there is in the suggestion, and how truly and to what extent 
the responsibility of a Jury may be said to include this issue 
of life and death. In the first place, as jurymen, you have 
no share or responsibility in the wisdom or the justice of 
those laws which you are called upon to administer. If 
there be defects in them — if they have something of that 
force and severity which is necessary for the maintenance 
of Government and the protection of peace and property, 
and of life on the high seas — you have had no share in 
their enactment, and have no charge, at your hands, of their 
enforcement. In the next place, you have no responsibility of 
any kind in regard to the discretion of the representatives of 
this Government in the course which they choose to take, 
as to whether they will prosecute or leave unprosecuted. 



THE SAVANNAH PRIVATEERS 95 

You do not, within the limits of the inquiry presented to 
you, dispose of the question, why others have not been 
presented to you; nor may that which has been done in a 
case not before you, serve as a guide for the subject sub- 
mitted to your consideration. So, too, you have no re- 
sponsibility of any kind concerning the course or views of 
the law which this tribunal may give for your guidance. 
The Court does not make the law, but Congress does. The 
Court declares the law as enacted by the Government, and 
the Jury finds the facts — giving every scrutiny, every patient 
investigation, every favor for life, and every reasonable 
doubt as to the facts, to the prisoners. Having disposed of 
that duty, as sober, intelligent and faithful men, graduating 
your attention only by the gravity of the inquiry, you have 
no further responsibility. But I need not say to you, gentle- 
men, that if any civilized government is to have control of 
the subject of piracy — if pirates are to be brought within 
the jurisdiction of the criminal law — the very nature of the 
crime involves the fact that its successful prosecution neces- 
sarily requires that considerable numbers shall be engaged in 
it. I am quite certain that, if my learned friends had found 
in the circumstances of this case nothing which removed it 
out of the category of the heinous crime of private plunder 
at sea, exposing property and life, and breaking up com- 
merce, they would have found nothing in the fact that a 
ship's crew was brought in for trial, and that the number 
of that crew amounted to twelve men, that should be pressed 
to the disturbance of your serene judgment, in any dis- 
position of the case. Now, gentlemen, let us look a little 
into the nature of the crime, and into the condition of the 
law. 

The penalty of the crime of piracy or robbery at sea 
stands on our statute books heavier than the penalty as- 
signed for a similar crime committed on land — which is, in 
fact, similar, so far as concerns its being an act of depreda- 



96 SPEECHES OF WILLIAM MAXWELL EVARTS 

tion. It may be said, and it is often argued, that, when the 
guilt of two offences is equal, society transcends its right 
and duty when it draws a distinction in its punishments; 
and it may be said, as has been fully argued to you — at least, 
by implication, in the course of this case — that the whole 
duty and the whole responsibility of civil Governments, in 
the administration of criminal law and the punishment of 
crime, has to do with the retributive vengeance, as it were, 
on the moral guilt of the prisoner. Now, gentlemen, I 
need not say to you, who are experienced at least in the 
common inquiries concerning governments and their duties, 
that, as a mere naked and separate consideration for pun- 
ishing moral guilt, Government leaves, or should leave, ven- 
geance where it belongs — to Him who searches the heart 
and punishes according to its secret intents — drawing no 
distinction between the wicked purpose which fully plans, 
and the final act which executes that purpose. The great, 
the main duty — the great, the main right — of civil society, 
in the exercise of its dominion over the liberties, lives, and 
property of its subjects, is the good of the public, in the 
prevention, the check, the discouragement, the suppression 
of crime. And I am sure that there is scarcely one of us 
who, if guilt, if fault, if vice could be left to the punishment 
of conscience and the responsibility of the last and great as- 
size, without prejudice to society, without injury to the 
good of others, without, indeed, being a danger and a de- 
struction to all the peace, the happiness, and the safety of 
communities, would not readily lay aside all his share in the 
vindictive punishments of guilty men. But society, framed 
in the form and for the purposes of Government, finds, alas ! 
that this tribunal of conscience, and this last and future 
accountability of another world, is inadequate to its pro- 
tection against wickedness and crime in this. 

You will find, therefore, in all, even the most enlightened 
and most humane codes of laws, that some necessary atten- 



THE SAVANNAH PRIVATEERS 97 

tion is paid to the predominant interest which society has in 
preventing crime. The very great difficulty of detecting it, 
the circumstances of secrecy, and the chances of escape on 
the part of the criminal, are considerations which enter into 
the distribution of its penalties. You will find, in a highly 
commercial community, like that of England, and to some 
extent — although, I am glad to say, with much less severity 
— in our own, which is also a highly commercial community, 
that frauds against property, frauds against trade, frauds 
in the nature of counterfeiting and forgery, and all those 
peaceful and not violent but yet pernicious interferences 
with the health and necessary activity of our everyday life, 
require the infliction of severe penalties for what, when you 
take up the particular elements of the crime, seems to have 
but little of the force, and but little of the depth of a serious 
moral delinquency. 

The severity of the penalties for passing counterfeit 
money is inflicted upon the poor and ignorant who, in so 
small a matter as a coin of slight value, knowingly and intel- 
ligently, under even the strongest impulses of poverty, are 
engaged in the offence. Now, therefore, when commercial 
nations have been brought to the consideration of what 
their enactments on the subject of piracy shall be, they 
have taken into account that the very offence itself re- 
quires that its commission should be outside of the active 
and efficient protection of civil society — that the com- 
mission of the crime involves, on the part of the criminals, 
a fixed, deliberate determination and preparation — and that 
the circumstances under which the victims, either in respect 
of their property or of their lives, are exposed to these ag- 
gressions, are such as to make it a part of the probable 
course of the crime, that the most serious evils and the 
deepest wounds may be inflicted. Now, when a crime, not 
condemned in ethics or humanity, and which the positive 
enactments of the law have made highly penal, yet contains 



98 SPEECHES OF WILLIAM MAXWELL EVARTS 

within itself circumstances that appeal very strongly to what- 
ever authority or magistrate has rightful control of the sub- 
ject for a special exemption, and special remission, and special 
concession from the penalty of the law, where and upon what 
principles does a wise and just, a humane and benignant Gov- 
ernment, dispose of that question? I agree that, if crimes 
which the good of society requires to be subjected to harsh 
penalties, must stand, always and irrevocably, upon the 
mere behest of judicial sentence, there would be found an 
oppression and a cruelty in some respects, that a community 
having a conscientious adherence to right and humanity 
would scarcely tolerate. Where, then, does it wisely be- 
stow all the responsibility, and give all the power that be- 
longs to this adjustment, according to the particular cir- 
cumstances of the moral and personal guilt, which must be 
necessary, and is always conceded? Why, confessedly, to 
the pardoning power, alluded to on one side or the other — 
though chiefly on the part of the prisoners' counsel — in the 
course of this trial. Now, you will perceive, at once, what 
the difference is between a Court, or a Jury, or a public 
prosecuting officer, yielding to particular circumstances of 
actual or of general qualification of a crime charged, — so 
that the law shall be thwarted, and the certainty and direct- 
ness of judicial trial and sentence be made the sport of 
sympathy, or of casual or personal influences, — and placing 
the pardoning power where it shall be governed by the 
particular circumstances of each case, so that its exercise 
shall have no influence in breaking down the authority of 
law, or in disturbing the certainty, directness, and com- 
pleteness of judicial rules. For, it is the very nature of a 
pardon, — committed to the Chief Magistrate of the Federal 
Union in cases of which this Court has jurisdiction, and to 
the Chief Magistrate of every State in the Union in cases 
of which the State tribunals take cognizance, — that it is a 
recognition of the law, and of the sentence of the law, and 



THE SAVANNAH PRIVATEERS 99 

leaves the laws undisturbed, the rules for the guidance of 
men unaffected, the power and strength of the Government 
unweakened, the force of the judiciary unparalyzed, and yet 
disposes of each case in a way that is just, or if not just, 
is humane and clement, where the pardon is exercised. 

Now, gentlemen, I shall say nothing more on the subject 
of pardon. It is a thing with which I have nothing to do — 
with which this learned Court has nothing to do — with which 
you, as jurymen, have nothing to do — beyond the fact that 
this beneficent Government of ours has not omitted from 
its arrangement, in the administration of its penal laws, this 
divine attribute of mercy. 

Now, there being the crime of piracy or robbery on the 
high seas, which the interests of society, the protection of 
property and of life, the maintenance of commerce, oblige 
every State and every nation, like ours, to condemn — what 
are the circumstances, what are the acts, that, in view of the 
law, amount to piracy.? You will understand me that, for 
the present, I entirely exclude from your consideration any 
of the particular circumstances which are supposed to give 
to the actual crime perpetrated a public character, lifting it 
out of the penal law that you administer, and out of the re- 
gion of private crime, into a field of quite different consider- 
ations. They are, undoubtedly, that the act done shall be 
with intent of depriving the person who is in possession of 
property, as its owner, or as the representative of that owner, 
of that property. That is what is meant by the Latin phrase, 
with which you are quite as familiar now, at least, as I, animo 
furandi — with the intention of despoiling the owner of that 
which belongs to him. And, to make up the crime of rob- 
bery on land, in distinction from larceny or theft, as we gen- 
erally call it (though theft, perhaps, includes all the variety 
of crime by which the property of another is taken against 
his will), robbery includes, and piracy, being robbery at sea, 
includes, the idea that it is done with the application, or the 



100 SPEECHES OF ^^^LLIAM MAXWTLL EVARTS 

threat, or the presence of force. There must be actual vio- 
lence, or the presence and exhibition of power and intent to 
use violence, which produces the surrender and delivery 
of the property. Such are the ingredients of robbery and 
piracy. And, gentlemen, these two ingredients are all; and 
you must rob one or the other of them of this, their poison, 
or the crime is completely proved, when the fact of the 
spoliation, with these ingredients, shall have been proved. 
The use that the robber or the pirate intends to make of the 
property, or the justification which he thinks he has by way 
of retaliation, by way of injury, by way of provocation, by 
way of any other occasion or motive that seems justifiable 
to his own conscience and his own obedience to any form 
whatever of the higher law, has nothing to do with the com- 
pleteness of the crime, unless it come to what has been ad- 
verted to by the learned counsel, and displayed before you 
in citations from the law-books — to an honest, however 
much it may be a mistaken and baseless, idea that the 
property is really the property of the accused robber, of 
which he is repossessing himself from the party against 
whom he makes the aggression. 

Now, unless, in the case proved of piracy, or robbery on 
land, there be some foundation for the suggestion that the wil- 
ful and intentional act of depriving a party of his property 
rests upon a claim of the robber, or the pirate, that it is his 
own property (however baseless may be the claim), you can- 
not avoid, you cannot defeat, the criminality of the act of 
robbery, within the intention of the law, by showing that the 
robber or the pirate had, in the protection of his own con- 
science, and in the government of his own conduct, certain 
opinions or views that made it right for him to execute that 
purpose. Thus, for instance, take a case of morals: A certain 
sect of political philosophers have this proposition as a basis 
of all their reasoning on the subject of property, — that is, that 
property, the notion of separate property in anything, as be- 



THE SAVANNAH PRIVATEERS 101 

longing to anybody, is theft; that the very notion that I can 
own anything, whatever it may be, and exclude other people 
from the enjoyment of it, is a theft made by me, a wrongful 
appropriation, when all the good things in this world, in the 
intention of Providence, were designed for the equal enjoy- 
ment of the human race. Well, now, a person possessed of 
that notion of political economy and of the moral rights and 
duties of men, might seek to avail himself of property owned 
and enjoyed by another, on the theory that the person in 
possession of it was the original thief, and that he was en- 
titled to share it. I need not say to you that all these ideas 
and considerations have nothing whatever to do with the 
consideration of the moral intent with which a person is 
despoiled of his property. 

Now, with regard to force, I do not understand that my 
learned friends really make any question, seriously, upon 
the general principle of what force is, or upon the facts of 
this case, that this seizure of the Joseph by the Savannah had 
enough of force, — the threat, the presence, and exhibition of 
power, — and of the intent to use it, to make the capture one 
of force, if the other considerations which are rehed upon 
do not lift it out of that catalogue of crime. 

It is true that the learned counsel who last addressed you* 
seemed to intimate, in some of his remarks, near the close 
of his very able and eloquent and interesting address, that 
there was not any force about it, that the master of the Joseph 
was not threatened, that there was no evidence that the 
cannon was even loaded, and that it never had been fired off. 
Well, gentlemen, the very illustration which he used of what 
would be a complete robberj^ on land, — the aggressor pos- 
sessing a pistol, and asking in the politest manner for your 
money, — relieves me from arguing that you must fire either 
a cannon or a pistol, before you have evidence of force. If 
our rights stand on that proposition, that when a pistol is 

* James T. Brady. 



102 SPEECHES OF WILLIAM MAXWELL EVARTS 

presented at our breast, and we surrender our money, we 
must wait for the pistol to be fired before the crime is com- 
pleted, you will see that the terrors of the crime of robbery 
do not go very far towards protecting j)roperty or person, 
which is the object of it. 

When, gentlemen, the Government, within a statute which, 
in the judgment of the Court, shall be pronounced as being 
lawfullv enacted under the Constitution of the United States, 
has completed the proof of the circumstances of the crime 
charged, it is entitled at your hands to a conviction of the 
accused, unless, by proof adduced on his part, he shall so 
shake the consistency and completeness of the proof on the 
part of the Government, or shall introduce such questions 
of uncertainty and doubt, that the facts shall be disturbed 
in your mind, or unless he shall show himself in some pre- 
dicament of protection or right under the law — (and, by 
" under the law," I mean, under the law of the land where the 
crime is punishable, and where the trial and the sentence 
are lawfully attributed to be), or unless he shall introduce 
some new facts which, conceding the truthfulness and the 
sufficiency of the case made by the Government, shall still 
interpose a protection, in some form, against the applica- 
tion of the penalty of the law. I take it that I need not say 
to you that this protection or qualification of the character 
of the crime must be by the law of the land; and, whether 
it comes to be the law of the land by its enactment in the 
statutes of the United States, or by the adoption and incor- 
poration into the law of the land of the principles of the law of 
nations, is a point quite immaterial to you. You are not 
judges of what the statutes of the United States are, except 
so far as their interpretation may rightfully become a subject 
of inquiry by the Jury, in the sense of whether the crime is 
within the intent of the Act, in the circumstances proved. 
You are not judges of what the law of nations is, in the first 
place; nor are you judges of how much of the law of nations 



THE SAVANNAH PRIVATEERS 103 

has been adopted or incorporated into the system of our 
Government and our laws, by the authority of its Congress 
or of its Courts. 

Whether, as I say to you, there is a defence, or protection, 
or qualification of the acts and transactions which, in their 
naked nature, and in their natural construction, are violent 
interferences with the rights of property, against the statute, 
and the protection of property intended by the statute, — 
whether the circumstances do change the liabilitj'^ or re- 
sponsibility of the criminal, by the introduction of a legal 
defence under the law of nations, or under the law of the 
land in any other form, is a question undoubtedly for the 
Court, — leaving to you always complete control over the 
questions of fact that enter into the subject. So that the 
suggestion, also dropped by my learned friend, at the close 
of his remarks, that any such arrangement would make the 
Jury mere puppets, and give them nothing to do, finds no 
place. It would not exclude from your consideration any 
matters of fact which go to make up the particular condition 
of public affairs or of the public relations of the community 
towards each other, in these collisions which disturb the land, 
provided the Court shall hold and say that, on such a state 
of facts existing, or being believed by you, there is in- 
troduced a legal qualification or protection against the 
crime charged. But, if it should be held that all these facts 
and circumstances, to the extent and with the effect that is 
claimed for them by the learned counsel as matter of fact, yet, 
as matter of law, leave the crime where it originally stood, 
being of their own nature such as the principles of law do not 
permit to be interposed as a protection and a shield, why, then 
you take your law on the subject in the same way as you do o n 
every other subject, from the instructions of the learned and 
responsible Bench, whose errors, if committed, can be cor- 
rected; while your confusion between your province and the 
province of the Court would, both in this case, and in other 



104 SPEECHES OF WILLIAM IVIAXWELL EVARTS 

cases, and sometimes to the prejudice of the prisoner, and 
against his life and safety, when prejudices ran that way, 
confound all distinctions; and, in deserting your duty, to 
usurp that of another portion of the Court, you would have 
done what you could, not to uphold, but to overthrow the 
laws of your country and the administration of justice ac- 
cording to law, upon which the safety' of all of us, at all times, 
in all circumstances, depends. 

Now, gentlemen, let me ask your attention, very briefly, 
to the condition of the proof in this case, from the immediate 
consideration of which we have been very much withdrawn 
by the larger and looser considerations, as I must think 
them, which have occupied most of the attention of the 
counsel, and been made most interesting, undoubtedly, and 
attractive to you. These twelve men now on trial — four 
of them citizens of the United States, and eight of them 
foreigners by birth and not naturalized — formed part of 
the crew of a vessel, originally a pilot-boat, called the 
"Savannah." That crew consisted of twenty men, and one 
of them has given the circumstances of the preparation 
for the voyage, of the embarkation upon the vessel, of 
her weighing anchor from the port of Charleston and making 
her course out to sea without any port of destination, and 
without any other purpose than to make seizures of vessels 
belonging to the loyal States of the Union and its citizens. 
He has shown you that all who went on board, all who are 
here on trial, had a complete knowledge of, and gave their 
ready and voluntary assent to and enlistment in this 
service; and that the service had no trait of compulsion, or 
of organized employment under the authority of Gov- 
ernment, in any act or signature of any one of the crew, as 
far as he knew, leaving out, of course, what I do not intend 
to dispute, and what you will not understand me as disre- 
garding — the effect that may be gained from the notorious 
facts and the documents that attended the enterprise. He 



THE SAVANNAH PRIVATEERS 105 

has shown you that, going to sea with that purpose, without 
any crew list, without any contract of wages, they descried, 
early in the morning after they adventured from the port, 
and at a point about sixty miles to sea, this bark, and ran 
down to her; and that, while running down to her, they sailed 
under the flag of the United States, and, hailing the brig, 
when within hailing distance, required the master of it to 
come on board with his papers. Upon the inquiry of the 
master, by what authority they made that demand on him, 
the stars and stripes being then floating at the masthead of 
the Savannah, Captain Baker informed him that it was 
in the name and by the authority of the Confederate States 
of America, at the same time hauling down the American 
flag and running up the flag of the Confederacy. What- 
ever followed after this, gentlemen, except so far as to 
complete the possession of the captured vessel, by putting 
a prize crew on board of it (so called), sending it into Charles- 
ton, and their lodging in jail the seamen or ship's company 
of the Joseph that accompanied it, and procuring a sale 
of the vessel — anything beyond that (and this only to show 
the completeness of the capture, and the maintenance of the 
design to absolutely deprive the owners of the vessel and 
cargo of their property) seems to be quite immaterial. Now, 
when we add to this the testimony of Mr. Meyer, the master 
of the captured vessel, who gives the same general view of 
the circumstances under which his vessel was overhauled 
and seized by the Savannah, as well as the observations 
and the influences which operated upon his mind while the 
chase was going on, we have the completeness of the crime, — 
not forgetting the important yet undisputed circumstances 
of the ownership of the vessel, and of the nature of the 
voyage in which she was engaged. You will observe that 
this vessel, owned by, and we may suppose, judging from 
the position of the witnesses examined before you, consti- 
tuting a good part of the property of, our fellow-countrymen 



106 SPEECHES OF WILLIAM MAXWELL EVARTS 

in the State of Maine, sailed on the 28th day of April, from 
Philadelphia, bound on a voyage to Cardenas, in Cuba, with 
a charter party out and back, under which she was to bring 
in a cargo of sugar and molasses. You will have noticed, 
comparing this date with some of the public transactions 
given in evidence, that it was after both the proclamation of 
Mr. Davis, inviting hostile aggressions against the commerce 
of the United States, on the part of whosoever should come 
to take commissions from him; and after the proclamation 
of the President of the United States, made to the people 
of the United States and all under its peace and protection, 
that if, under this invitation of Mr. Davis, anybody should 
assume authority to make aggressions, on the high seas, 
upon the private property of American citizens, they should 
be punished as pirates. This vessel, therefore, sailed on her 
voyage under the protection of the laws of the United States, 
and under this statement of its Government, that the general 
laws which protected property and seamen on the high 
seas against the crime of piracy were in force, and would be 
enforced by the Government of the United States, wherever 
it held power, against any aggressions that should assume to 
be made under the protection of the proclamation of Mr. 
Davis. While returning, under the protection of this flag 
and of this Government, she meets with hostile aggression 
at the hands of an armed vessel, which has nothing to dis- 
tinguish it from the ordinary condition of piracy, except this 
very predicament provided against by the proclamation of 
the President, and under the protection of which the vessel 
had sailed, to wit, the supposed authority of Jefferson Davis; 
which should not, and cannot, and will not, as I suppose, 
protect that act from the guilt and the punishment of 
piracy. 

Now, you will have observed, gentlemen, in all this, that 
whatever may be the circumstances or the propositions of 
law connected with this case, that may change or qualify 



THE SAVANNAH PRIVATEERS 107 

the acts and conduct of Mr. Baker, so far as the owners of 
this vessel and the owners of this cargo are concerned, 
there has been as absolute, as complete, as final and as 
perfect a deprivation of their property, as if there had been 
no commission — no public or other considerations that 
should expose them to having the act done with impunity. 
You will discover, then, that, so far as the duty of protec- 
tion from this Government to its citizens and their prop- 
erty — so far as the duty of maintaining its laws and 
enforcing them upon the high seas — is concerned, there 
is nothing pretended— there is nothing, certainly, proved — 
that has excused or can excuse this Government, in its 
Executive Departments, in its Judicial Departments, in the 
declaration of law from the Court, or in the finding of facts 
by the Jury, from its duty towards its citizens and their 
property. And, while you have been led to look at all the 
qualifying circumstances that should attend your judgment 
concerning the act and the fact on the part of these prisoners, 
I ask your ready assent to the proposition, that you should 
look at the case of these sufferers, the victims of those men, 
whose property has been ventured upon the high seas in 
reliance on its safety against aggression, from whatever 
source, under the exercise of the authority of the Govern- 
ment to repel and to punish such crimes. 

Before I go into any of the considerations which are to 
affect the relations of these prisoners to this alleged crime, 
and to this trial for such alleged crime, let us see what 
there are in the private circumstances particular to them- 
selves, and their engagement in this course of proceeding, 
that is particularly suited to attract your favor or in- 
dulgence. Now, these men had not, any of them, been 
under the least compulsion, or the least personal or particu- 
lar duty of any kind, to engage in this enterprise. Who 
are they? Four of them are citizens of the United States. 
Mr. Baker is, by birth, a citizen of the State of Pennsylvania; 



108 SPEECHES OF \MLLL\M MAX\\'ELL EVARTS 

two are citizens, by birth, of the State of South CaroHna, 
and one of North CaroHna. The eight men, foreigners, 
are, three of Irish origin, two of Scotch, one a German, one a 
native of ManiUa, in the East Indies, and one of Canton, 
in China. Now, you will observe that no conscription, no 
enlistment, no inducement, no authority of any public kind 
has been shown, or is suggested, as having influenced any of 
them in this enterprise. My learned frientl has thought it 
was quite absurd to impute to this Chinaman and this 
Manillaman a knowledge of our laws. Is it not quite as 
absurd to throw over them the protection of patriotism — 
the protection of indoctrination in the counsels and ethics 
of Calhoun— to give them the benefit of a departure from 
moral and natural obligations to respect the property of 
others, on the theory that they must surrender their own 
rectitude — their own sense of right — to an overwhelming 
duty to assist a suffering peo])le in gaining their liberty? 
What I have said of them applies equally to these Irishmen, 
this German, and these Scotchmen — as good men, if you 
please, in every respect, as the same kind of men born in 
this country. I draw no such national distinctions; but I 
ask what there is, in the sober, sensible, practical considera- 
tion of the motives and purposes with which these men 
entered into this enterprise to despoil the commerce of the 
United States, and make poor men of the owners of that 
vessel, that should give them immunity from the laws of 
property and the laws of the land, or form any part in the 
struggles of a brave and oppressed people (as we will con- 
sider them, for the purpose of the argument) against a 
tyrannical and bloodthirsty Government? 

No! No! Let their own language indicate the degree 
and the dignity of the superior motives that entered into 
their adoption of this enterprise: "We thought we had a 
right to do it, and we did it." Was there the glow of patriot- 
ism — was there the self-sacrificing devotion to work in the 



THE SAVANNAH PRIVATEERS 109 

cause of an oppressed people, in this? No! And the only 
determination that these men knew or looked at, was the 
lawfulness of the enterprise, in respect of the sanctions and 
punishments of the law. They, undoubtedly^ had not any 
purpose or any thought of running into a collision with the 
comprehensive power and the all-punishing condemnation of 
the statutes of the United States, whether they knew what 
the statutes were or not; but they did take advantage of 
the occasion and opportunity to share the profits of a priva- 
teering enterprise against the commerce of the United States; 
and they were unquestionably acquainted, either by original 
inspection or by having a favorable report made to them, 
with the fundamental provision in regard to this system of 
privateering, so called. They knew that the entire profits of 
the transaction would be distributed among those who 
were engaged in it. Now, I am not making any particular 
or special condemnation of these men (in thus readily, with- 
out compulsion, and without the influence of any superior 
motives, however mistaken, of patriotism) bej^ond what the 
general principles of public law and general opinion, founded 
on the experience of privateering, have shown to be the 
reckless and greedy character of those who enter upon 
private war, under the protection of any, however recent, 
flag. Everybody knows it — everybody understands it — 
everybody recognizes the fact that, if privateers, who go 
in under the hope of gain, and for the purposes of spoliation, 
are not corrupt and depraved at the outset, they expose them- 
selves to influences, and are ready to expose themselves to 
influences, which will make them as dangerous, almost, to 
commerce, and as dangerous to life, as if the purpose and 
the principle of privateering did not distinguish them from 
pirates. And, to show that, in this law of ours, there is 
nothing that is forced in its application to privateers — that 
there is nothing against the principles of humanity or com- 
mon sense in the nation's undertaking to say, we will not 



110 SPEECHES OF WILLIAM MAXWELL EVARTS 

recognize any of those high moral motives, any of this 
superior dignity, about privateers; we understand the whole 
subject, and we know them to be, in substance and effect, 
dangerous to the rights of peaceful citizens, in their lives 
and their property, — reference need only be had to the 
action of civilized Governments, and to that of our Govern- 
ment as much as any, in undertaking to brush away these 
distinctions, wherever it had the power — that is my proposi- 
tion — wherever it had the power to do so. And I ask your 
Honors' attention to the provision on this subject, in the 
first treaties which our Government — then scarcely having 
a place among the nations of the earth — introduced upon this 
very question of piracy and privateers. I refer to the 
twentv-first article of the Treatv of Commerce with France, 
concluded on the 6th of February, 1778, on page 24 of the 
eighth volume of the Statutes at Large. This is a com- 
mercial arrangement, entered into by this infant Govern- 
ment, before its recognition by the Throne of Great Britain, 
with its ally, the most Christian Monarch of France: 

" No subjects of the Most Christian King shall apply for or 
take any commission or letters of marque, for arming any 
ship or ships to act as privateers against the said United 
States, or any of them, or against the subjects, people or 
inhabitants of the said United States, or any of them, or 
against the property of any of the inhabitants of any of them, 
from any Prince or State with which the said United States 
shall be at war; nor shall any citizen, subject or inhabitant 
of the said United States, or any of them, apply for or take 
any commission or letters of marque for arming any ship or 
ships, to act as privateers against the subjects of the Most 
Christian King, or any of them, or the property of any of 
them, from any Prince or State with which the said King 
shall be at war; and if any person of either nation shall take 
such commissions or letters of marque, he shall be punished 
as a pirate." 



THE SAVANNAH PRIVATEERS 111 

Now, we have had a great deal of argument here to show 
that, under the law of nations, — under the law that must 
control and regulate the international relations of inde- 
pendent powers — it is a gross and violent subversion of the 
natural, inherent principles of justice, and a confusion be- 
tween crime and innocence, to say to men who, under the 
license of war, take commissions from other powers, that 
they shall be hanged as pirates. And yet, in the first con- 
vention which we, as an infant nation, formed with any 
civilized power, attending in date the Treaty of Alliance 
which made France our friend, our advocate, our helper, in 
the war of the Revolution, his Most Christian Majesty, the 
King of France, standing second to no nation in civilization, 
signalized this holy alliance of friendship in behalf of justice, 
and humanity, and liberty, by engaging that, whatever the 
law of nations might be, whatever the speciousness of pub- 
licists might be, his subjects, amenable to the law, should 
never set up the pretence of a commission of privateering 
against the penalties of piracy. Nor had this treaty of 
commerce, which I have referred to, anything of the nature 
of a temporary or warlike arrangement between the parties, 
pending the contest with Great Britain. It was a treaty 
independent of the Treaty of Alliance which engaged them 
as allies, offensive and defensive, in the prosecution of that 
war. Nor is this an isolated case of the morality and policy 
of this Government on the subject of piracy. By reference 
to the 19th Article of the Treaty between the Netherlands 
and the United States, concluded in 1782, at page 44 of the 
same volume, your Honors will find the same provision. 
After the same stipulation, excluding the acceptance of 
commissions, from any power, to the citizens or subjects of 
the contracting parties, there is the same provision: "And 
if any person of either nation shall take such commissions 
or letters of marque, he shall be punished as a pirate." 

Now, our Government has never departed from its pur- 



112 SPEECHES OF WILLIAM MAXWELL EVARTS 

pose and its policy, to meliorate the law of nations, so as to 
extirpate this business of private war on the ocean. It is 
entirely true that, in its subsequent negotiations with the 
great powers of Christendom, it has directed its purpose to 
the more thorough and complete subversion and annihila- 
tion of the whole abominable exception, which is allowed on 
the high seas, from the general melioration of the laws of 
war, and does not tolerate aggressions of violence, and 
murder, and rapine, and plunder, except by the recognized 
forces contending in the field. It has attempted to secure 
not only the exclusion of private armed vessels from pri- 
vateering, but the exclusion of aggressions on the part of 
public armed vessels of belligerents on private property of 
all kinds upon the ocean. And no trace of any repugnance 
or resistance on the part of our Government to aid and co- 
operate in that general melioration in the laws of war, in 
respect to property on the ocean, can be charged or proved. 
In pursuance of that purpose, as well as in conformity with a 
rightful maintenance of its particular predicament in naval 
war, — to wit, a larger commerce than most other nations, 
and a smaller navy,— it has taken logically, and diplomati- 
cally, and honestly, the position. I will not yield to these 
false pretences of humanity and melioration which will 
only deprive us of privateers, and leave our commerce ex- 
posed to your immense navies. If you are honest about it, 
as we are, and opposed to private war, why, condemn and 
repress private war in respect to the private character of the 
property attacked, as well as private war in respect to the 
vessels that make the aggressions. 

Nor, gentlemen, do I hesitate to say that, whatever we 
may readily concede to an honest difference of opinion and 
feeling, in respect to great national contests, where men, 
with patriotic purposes, raise the standard of war against 
the Government, and, on the other hand, uphold the old 
standard to suppress the violence of war lifted against it, 



THE SAVANNAH PRIVATEERS 113 

we do not, we cannot, as honest and sensible men, look with 
favor upon an indiscriminate collection from the looser por- 
tions of society, that rush on board a marauding vessel, 
the whole proceeds and results of whose aggressions are to 
fill their own pockets. And, when my learned friends seek 
to go down into the interior conscience and the secret motives 
of conduct, I ask you whether, if this had been a service in 
which life was to be risked, and all the energies of the man 
were to be devoted to the public service, for the glory and the 
interest of the country, and the poor food, poor clothing 
and poor pay of enlisted troops, you would have found 
precisely such a rush to that service? 

Now, I am not seeking, by these considerations, to dis- 
turb in the least the legal protections, if there be any, in 
any form, which it is urged have sprung out of the character 
of privateering which this vessel had assumed, and these men, 
as part of its crew, had been incorporated in. If legal, 
let it be so; but do not confound patriotism, which sacri- 
fices fortune and life for the love of country, with the motives 
of these men, who seek privateering because they are out 
of employment. Far be it from me to deny that the feeling 
of lawful right, the feeling that statutory law is not violated, 
if it draw the line between doing and not doing a thing, is 
on the whole a meritorious consideration and a trait that 
should be approved. But I do object to having the range 
of these men's characters and motives exalted, from the low 
position in which their acts and conduct place them, into 
the high purity of the patriot and the martyr. We are try- 
ing, not the system of privateering — we are trying the 
privateers, as they are called; and, when they fail of legal 
protection, they cannot cover themselves with this robe of 
righteousness in motive and purpose. 

Now, how much was there of violence in the meditated 
course, or in the actual aggression? Why, the vessel is 
named in the commission as having a crew of thirty. In 

10 



114 SPEECHES OF \\TLLL\M MAXWELL EV.\RTS 

fact, she had twenty. Four men was a sufficient crew for a 
mercantile voyage. She had an eighteen pounder, a great 
gun that must have reached half way across the deck, rest- 
ing on a pivot in the middle, capable of being brought around 
to any quarter, for attack. At the time this honest master 
and trader of the Joseph descried the condition of the vessel, 
he was struck with this ugly thing amidships as he called 
it — to wit, this eighteen pound cannon, and was afraid 
it was a customer probably aggressive — a robber. But he 
was encouraged by what.^ Although he saw this was a 
pilot boat, and not likely, with good intent, to be out so far 
at sea, what was this honest sailor encouraged by.? The 
flag of the United States was flying at her mast! But, when 
hailed — still under that view as to the aspect presented by the 
marauding vessel — he is told to come on board, and asks 
by what authority— instead of what would have been the glad 
and reassuring announcement — the power of the American 
flag — the Confederate States were announced as the maraud- 
ing authority, and the flag of his country is hauled down, 
and its ensign replaced by this threat to commerce. Now, 
when this gun, as he says, was pointed at him, and this 
hostile power was asserted, my learned friends, I submit to 
you, cannot, consistently with the general fairness with 
which they have pursued this argument, put the matter 
before you as failing in any of the completeness of proof con- 
cerning force. For, when we were purposing to show that 
these prisoners all the while, in their plans, had the purpose 
of force, if force was necessary, and that, in the act of col- 
lision with the capturing vessel, that force occurred, we 
were stopped, upon the ground that it was unnecessary 
to occupy the attention of the Court and the Jury with any- 
thing that was to qualify this vessel's violent character, 
by reason of the admission that, if it was not protected 
by the commission, or the circumstances of a public char- 
acter of whatever kind and degree — about which I admit 



THE SAVANNAH PRIVATEERS 115 

there was no restriction of any kind, — if it stood upon the 
mere fact that the vessel was taken from its owners by the 
Savannah in the way that was testified, — it would not 
be claimed to be wanting in any of the quality of complete 
spoliation, or in any of the quality of force. Now, that de- 
fence, we may say, must not be recurred to, to protect, in 
your minds, these men from the penalty which the law has 
imposed upon the commission of piracy. It cannot be pre- 
tended that there was any defect in the purpose of despoiling 
the original owners, nor that there is any deficiency in the 
exhibition of force, to make it piracy; and you will perceive, 
gentlemen, that although my learned friends successively, 
Mr. Dukes, Mr. Sullivan, and Mr. Brady, have, with the 
skill and purpose of advocates, taken occasion, at frequent 
recurring points, to get you back to the want of a motive 
and intent or purpose of the guiltiness of robbing, yet, after 
all, it comes to this — that the inconsistency of the motive 
and intent, or the guiltiness of robbing, with the lawfulness, 
under the law of nations, of privateering, is the only ground 
or reason why the crime is deficiently proved. 

I do not know that I need say anything to you about 
privateering, further than to present somewhat distinctly 
what the qualifications, what the conditions, and what the 
purposes of privateering are. In the first place, privateering 
is a part of war, or is a part of the preliminary hostile ag- 
gressions which are in the nature of a forcible collision be- 
tween sovereign powers. Now, what is the law of nations on 
this subject — and how does there come to be a law of na- 
tions — and what is its character, what are its sanctions, 
and who are parties to it? We all know what laws are 
when they proceed from a Government, and operate upon 
its citizens and its subjects. Law then comes with authority, 
by right, and so as to compel obedience; and laws are always 
framed with the intent that there shall be no opportunity 
of violent or forcible resistance to them, or of violent or 



116 SPEECHES OF ^\TLLIA^I IVIAXWTLL EVARTS 

forcible settlement of controversies under them, but that the 
power shall be submitted to, and the inquiry as to right pro- 
ceed regularly and soberly, under the civil and criminal 
tribunals. But, when we come to nations, although they 
have relations towards each other, although they have duties 
towards each other, although they have rights towards each 
other, and although, in becoming nations, they neverthe- 
less are all made up of human beings, under the general laws 
of human duty, as given by the common lawgiver, God, 
yet there is no real superior that can impose law over them, 
or enforce it against them. And it is only because of that, 
that war, the scourge of the human race — and it is the great 
vice and defect of our social condition, that it cannot be 
avoided — comes in, as the only arbiter between j^owers 
that have no common superior. I am sure that the little 
time I shall spend upon this topic will be serviceable; as, 
also, in some more particular considerations, as to what is 
called a state of war, and as to the conditions which give 
and create a war between the different portions of our unhappy 
country and its divided population. So, then, nations have 
no common superior whom they recognize under this law, 
which they have made for themselves in the interest of 
civilization and humanity, and which is a law of natural 
right and natural duty, so far as it can be applied to the 
relations which nations hold to one another. They recog- 
nize the fact that one nation is just as good, as matter of 
right, as another; that whether it be the great Powers of 
Russia, of England, of France, of the United States of 
America, or of Brazil, or whether it be one of the feeble 
and inferior Powers, in the lowest grade, — as, one of the 
separate Italian Kingdoms, or the little Republic of San 
Marino, whose territories are embraced within the circuit 
of a few leagues, or one of the South American States, scarcely 
known as a Power in the affairs of men, — yet, under the prop- 
osition that the Stg-tes are equal in the family of nations, 



THE SAVANNAH PRIVATEERS 117 

they have a right to judge of their quarrels, and, finding oc- 
casions for quarrel, have a right to assert them, as matter of 
force, in the form of war. And all the other nations, how- 
ever much their commerce may be disturbed and injured, 
are obliged to concede certain rights, that are called the 
rights of war. We all understand what the rights of war are 
on the part of two people fighting against each other. A 
general right is to do each other as much injury as they can; 
and they are very apt to avail themselves of that right. 
There are certain meliorations against cruelty, which, if a 
nation should transgress, probably other nations might feel 
called upon to suppress. But, as a general thing, while two 
nations are fighting, other nations stand by and do not 
intervene. But the way other nations come to have any 
interest, and to have anything to say whether there is war 
between sovereign powers, grows out of certain rights of war 
which the law of nations gives to the contending parties, 
against neutrals. For instance: Suppose Spain and Mexico 
were at war. Well, you would say, what is that to us.^^ 
It is this to us. On the high seas, a naval vessel of either 
power has a right, in pursuit of its designs against the enemy, 
to interrupt the commerce of other nations to a certain ex- 
tent. It has a right of visitation and of search of vessels 
that apparently carry our flag. Why.^^ In order to see 
whether the vessel be really our vessel, or whether our 
flag covers the vessel of its enemy, or the property of its 
enemy. It has also a right to push its inquiries farther, and 
if it finds it to be a vessel of the United States of America, 
to see whether we are carrying what are called contraband 
of war into the ports of its enemy, and, if so, to confiscate it 
and her. Each of the powers has a right to blockade the 
ports of the other, and thus to break up the trade and pur- 
suits of the people of other nations — and that without any 
quarrel with the other people. And so you see, by the law 
of nations, this state of war, which might, at first, seem to 



118 SPEECHES OF ^\^LLIAM IVLVXWELL EVARTS 

be only a quarrel between the two contending parties, really 
becomes, collaterally, and, in some cases, to a most im- 
portant extent, a matter of interest to other nations of the 
globe. But however much we suffer — however much we 
are embarrassed (as, for example, in the extreme injury to 
British commerce and British interests now inflicted in this 
country— the blockade keeping out their shipping, and pre- 
venting shipments of cotton to carry on their industry) 
we must submit, as the English people submit, in the view 
their Government has chosen to take of these transactions. 
Now, gentlemen, this being the law of nations, you will 
perceive that, as there is no human earthly superior, so 
there are no Courts that can lay down the law, as our Courts 
do for our people, or as the Courts of England do for their 
people. There are no Courts that can lay down the law of 
nations, so as to bind the people of another country, except 
so far as the Courts of that country, recognizing the sound 
principles of morality, humanity and justice obtaining in 
the government and conduct of natiohs towards each other, 
adopt them in their own Courts. So, when my learned 
friends speak of the law of nations as being the law that is 
in force here, and that may protect these prisoners in this 
case against the laws of the United States of America, why, 
they speak in the sense of lawyers, or else in a sense that 
will confuse your minds, that is to say, that the law of na- 
tions, as the Court wiW expound and explain it, has or has 
not a certain effect upon what would be otherwise the plain 
behests of the statute law. 

Now, it is a part of the law of nations, except so far as 
between themselves they shall modify it by treaty— (two 
instances of which I have read in the diplomacy of our own 
country, and a most extensive instance of which is to be 
found in the recent treaty of Paris, whereby the law of na- 
tions, in respect to privateering, has been so far modified as 
to exclude privateering as one of the means of war) — out- 



THE SAVANNAH PRIVATEERS 119 

side of particular arrangements made by civilized nations, 
it was a part of the original law of war prevailing among 
nations, that any nation engaged in war might fit out pri- 
vateers in aid of its belligerent or warlike purposes or move- 
ments. No difficulty arose about this when war sprang 
up between two nations that stood before the world in their 
accredited and acknowledged independence. If England 
and France went to war, or if England and the United States, 
as in 1812, went to war, this right of fitting out privateers 
would obtain and be recognized. But, there arises, in the 
affairs of nations, a condition much more obscure and un- 
certain than this open war between established powers, and 
that is, when dissension arises in the same original nation — 
when it proceeds from discontent, sedition, private or local 
rebellion, into the inflammation of great military aggression; 
and when the parties assume, at least (assume, I say) to be 
rightfully entitled to the position of Powers, under the law 
of nations, warring against one another. The South Ameri- 
can States, in their controversy which separated them from 
the parent country, and these States, when they were Col- 
onies of Great Britain, presented instances of these domestic 
dissensions between the different parts of the same Gov- 
ernment, and the rights of war were claimed. Now, what 
is the duty of other nations in respect to that.' Why, their 
duty and right is this — that they may either accord to these 
struggling, rebellious, revolted populations the rights of war, 
so far as to recognize them as belligerents, or not; but, 
whether they will do so or not, is a question for their Govern- 
ments, and not for their Courts, sitting under and by 
authority of their Governments. For instance, you can 
readily see that the great nations of the earth, under the 
influences upon their commerce and their peace which I 
have mentioned, may very well refuse to tolerate the quar- 
rel as being entitled to the dignity of war. They may say: 
"No, no; we do not see any occasion for this war, or any jus- 



120 SPEECHES OF ^\TLLIAM MAXAVELL EVARTS 

tice or benefit that is to be promoted by it; we do not see 
the strength or power that is likely to make it successful; 
and we will not allow a mere attempt or effort to throw us 
into the condition of submitting to the disturbance of the 
peace, or the disturbance of the commerce of the world." 
Or, they may say: " We recognize this right of incipient war to 
raise itself and fairly contend against its previous sovereign 
— not necessarily from any sympathy, or taking sides in it, 
but it is none of our affair; and the principles of the con- 
troversy do not prevent us from gi\'ing to them this recog- 
nition of their supposed rights." Now when they have done 
that, they may carry their recognition of right and power 
as far as they please, and stop where they please. They 
may say: "We will tolerate the aggression by public armed 
vessels on the seas, and our vessels shall yield the right of 
visitation and search to them." They may say: "We will 
extend it so far as to include the right of private armed vessels, 
and the rights of war may attend them;" or they may refuse 
to take this last step, and say, "We will not tolerate the 
business of privateering in this quarrel." And whatever they 
do or say on that subject, their Courts of all kinds will follow. 
Apply this to the particular trouble in our national affairs 
that is now progressing to settle the fate of this country. 
France and England have taken a certain position on this 
subject. I do not know whether I accurately state it (and 
I state it only for the purpose of illustration, and it is not 
material), but, as I understand it, they give a certain degree 
of belligerent right, so that they would not regard the 
privateers on the part of the Southern rebellion as being 
pirates, but they do not accord succor or hospitality in their 
ports to such privateers. W^ell, now, suppose that one of 
these privateers intrudes into their ports and their hos- 
pitalities, and claims certain rights. Why, the question, 
if it comes up before a Court in Liverpool or London, will 
be — Is the right within the credit and recognition which 



THE SAVANNAH PRIVATEERS 121 

our Government has given? And only that. So, too, our 
Government took the position in regard to the revolting 
States of South America, that it would recognize them as 
belligerents, and that it would not hang, as pirates, privateers 
holding commissions from their authority. But, when other 
questions came up, as to whether a particular authority 
from this or that self-styled power should be recognized, our 
Government frowned upon it, and would not recognize it. 
With regard to Captain Aury, who styled himself General- 
issimo of the Floridas, or something of that kind, when 
Florida was a Spanish province, our Courts said: "We do 
not know anything about this — his commissions are good 
for nothing here — our Government has not recognized any 
such contest or incipient nationality as this." So, too, in 
another case, where there was an apparent commission 
from one struggling power, the Court says: Our Govern- 
ment does not recognize that power, and we do not, in giving 
any rights of war to it; but, the Court says, it appears in the 
proof that this vessel claims to have had a commission from 
Buenos Ayres, another contending power; if so, that is a 
power which our Government recognizes; and the case must 
go down for further proof on that point. 

I confess that, if the views of my learned friends are to 
prevail, in determining questions of crime and responsibility 
under the laws and before the Court, and are to be accepted 
and administered, I do not see that there is any Govern- 
ment at all. For you have every stage of Government; 
first. Government of right; next a Government in fact; next, 
a Government trying to make itself a fact; and, next, a 
Government which the culprit thinks ought to be a fact. 
Well, if there are all these stages of Government, and all 
these authorities and protections, which may attend the 
acts *of people all over the world, I do not see but every 
Court and every Jury must, finally, resolve itself into the 
great duty of searching the hearts of men, and putting its 



122 SPEECHES OF ^\^LLIAM >L\XWELL EVARTS 

sanctions upon pure or guilty secret motives, or notions, or 
interpretations of right and wrong — a task to which you, 
gentlemen of the Jury, I take it, feel scarcely adequate. 

Now, gentlemen, I have perhai)s wearied you a little 
upon this subject; because it is from some confusion in these 
ideas, — first, of what the law of nations permits a Govern- 
ment to do, and how it intrudes upon and qualifies the laws 
of that Government; and, second, upon what the rights are 
that grow out of civil dissensions, as toward neutral powers, 
— that some difficult v and obscuritv are introduced into this 
case. 

If the Court please, I maintain these propositions, in con- 
formity with the views I have heretofore presented — first, that 
the law of the land is to determine whether this crime of 
piracy has been committed, subject only to the province of 
the Jury in passing upon the facts attending the actual per- 
petration of the offence; and, second, upon all the questions 
invoked to qualify, from the public relations of the hostile 
or contending parties in this controversy, the attitude that 
this Government holds towards these contending parties, 
is the attitude that this Court, deriving its authority from 
this Government, must necessarily hold towards them. 

I have argued this matter of the choice and freedom of a 
Government to say how it will regard these civil dissensions 
going on in a foreign nation, as if it had some application to 
this controversy, in which we are the nation, and this Court 
is the Court of this nation. 

But, gentlemen, the moment I have stated that, you will 
see that there is not the least pretence that there is any dis- 
pensing power in the Court, or that there has been any dis- 
pensing power exercised by our Government, or that there 
has been any pardon, or any amnesty, or any proclamation, 
saving from the results of crime against our laws, any per- 
son engaged in these hostilities, who at any time has owed 
allegiance and obedience to the Government of the United 



THE SAVANNAH PRIVATEERS 123 

States. Therefore, here we stand, really extricated from the 
confusion, and from all the wideness of controversy and of 
comment that attends these remote considerations of this 
case that have been pressed upon your attention as if 
they were the case itself, on the part of our learned friend. 

Now, if the Court please, I shall bestow some particular 
consideration upon the statute, but I shall think it necessary 
to add very little to the remarks I have heretofore made to 
the Court. The 8th section of the statute has been charac- 
terized by the learned counsel, and, certainly, with suffi- 
cient accuracy, for any purposes of this trial, as limited to the 
offence of piracy as governed by the law of nations. I do 
not know that any harm comes from that description, if we 
do not confuse it with the suggestion that the authority 
of this Government over the crime is limited to the con- 
struction of the law of nations which is expressed in that 
section of the statute. At all events, as they concede, I be- 
lieve, that the 8th section is within the constitutional right 
and power of Congress, under the special clause giving them 
authority to define and punish piracy, under the law of 
nations, there is no room for controversy here on the point. 
When we come to the 9tli section, we have two different and 
quite inconsistent views presented by the different counsel. 
One of the counsel (I think, Mr. Dukes) insists that the 9th 
section does not create any additional crime beyond that of 
piracy as defined in the 8tli section, but only robs that crime of 
piracy of any apparent protection from a commission or 
authority from any State. But, my friend Mr. Brady con- 
tends (and, I confess, according to my notion of the law, with 
more soundness) that there is an additional crime, which 
would not be embraced, necessarily, in the crime of piracy 
or robbery on the high seas — which is the whole purview of 
the 8th section, and which is in terms repeated in the 9th — 
and that the additional words, " or any act of hostility against 
the United States, or any citizens thereof," create a punish- 



124 SPEECHES OF ^MLLIAM MAX^^'ELL EVARTS 

able offence, altlioiigh it may fall short of the completed 
crime of piracy and robbery, as defined. Now, I concede to 
my learned friend that the particular case he put of a quarrel 
between two shi])s' crews on the high seas, and of an attack 
by one of the crew of one upon one of the crew of the other 
with a belaying ])in, would not, in my judgment, as an 
indictable, punishable olfence, fall within the J)th section. 
But, whether I am right or wrong about it, does not impede 
the argument of the Government, that there are crimes 
which are in the nature of and uj) to the completeness of 
hostile attacks upon vessels or citizens of the United States 
which would not be piracy, but yet are punishable under the 
9th section. 

Now, agreeing, thus far, that there is an added offence to 
the crime of piracy in the 9th section, I am obliged to meet 
his next proposition, that such additional offence is beyond 
the constitutional power of Congress, because it is an offence 
which does not come up to the crime of piracy, and, there- 
fore, exceeds the grant of authority under the particular 
section of the Constitution which gives to Congress power 
over the definition and punishment of piracy under the law 
of nations. 

Now, if the Court please, the argument is a very simple 
one. This 9th section does not profess to carry the power 
of this Government where alone the principles of the law of 
nations would justify; that is, to operate upon all the world, 
so far as the subjects of it — that is, the persons included in 
its sanctions — are concerned, or so far as the property pro- 
tected by it is concerned. It is limited to citizens, and 
limited to hostilities against citizens of the United States, 
or their property at sea. Now, the authority in respect to 
this comes to Congress under the provision of the Constitu- 
tion which gives the regulation of commerce and its control, 
in regard to which I need not be more particular to your 
Honors, because they are statutes of every-day enforcement, 



THE SAVANNAH PRIVATEERS 125 

and under the highest penalty, too, of the law, such as re- 
volt, mutiny, etc., which have nothing to do with the national 
considerations of the law of piracy, and nothing to do with 
the clause of the Constitution which gives to Congress 
power over the crime of piracy, but rest in the power re- 
posed in Congress to protect the commerce of the United 
States. So, this is wholly within the general competency of 
Congress to govern citizens of the United States on the 
high seas, and to protect the property of citizens on the high 
seas, although there is no common law of general jurisdic- 
tion of Congress on the subject of crimes. 

Now, upon this subject there is but one other criticism, 
and that is — that although the statute is framed with the in- 
tent, and its language covers the purpose, of prohibiting 
any defence or protection being set up under an assumed 
or supposed authority from any foreign Government, State, 
or Prince, or from any person, yet the particular authority 
which is averred in the indictment and produced in proof, 
if you take it in the sense that we give to it, is not within 
the purview of the statute, and, if you take it in any other 
sense, is not proved; and that thus a variance arises between 
the indictment and the proof, because the proof goes so far 
as to remove from under the statute the four defendants who 
would otherwise be amenable as citizens, by making the 
Government foreign, and making them foreign citizens. 

Now, to take up one branch of this at a time, I do not 
care at all whether the Government of the United States, 
when they passed this law, anticipated that there would 
ever be an occurrence which should give shape to such a 
commission as this, from either a person or an authority 
that emanated from what was or ever had been a part or a 
citizen of the United States. If these new occurrences here 
have produced new relations — (and that is the entire argu- 
ment of my learned friends, for, if they have produced no 
new relations, what have we to do with any of these discus- 



126 SPEECHES OF WILLIAM ^LVXWELL EVARTS 

sions?) — if they have prochiced new relations, perfect or 
imperfect, effectual or ineffectual, to this or that extent, why 
then, if these new relations and attitude have brought this 
matter within the purview of a statute of the United States 
which was framed to meet all relations that might arise at 
anv time, thev come within its predicament, and the argu- 
ment seems to me to amount to nothing. It will not be })re- 
tended that the 9th section of this statute can only be en- 
forced as to Powers in existence at the time it was passed. 
AYhenever a new Power or new authority is set forth as a 
protection to the crime of piracy, the Oth section of the 
statute says: "Well, we do not know or care anything about 
what the law of nations says about your protection, or your 
authority — we say that no citizen of the United States, depre- 
dating against our commerce, shall set up any authority to 
meet the justice of our criminal law." Well, now, that the 
statute has said; and we have averred and proved the connnis- 
sion such as it is. It is either the commission of a foreign 
Prince, or State, or it is an authority from some person. We 
do not recognize it as from a foreign State or Prince. Indeed, 
Mr. Davis does not call himself a Prince, and we do not recog- 
nize the Confederate States as a nation or State, in any rela- 
tion. Therefore if we would prove this authority under our 
law, we must aver it as it is, coming from an individual who 
was once a citizen of the Ignited States, and still is, as the law 
decides, a citizen of the United States. Whatever part or 
pretension of authority he assumes, and whatever real fact 
and substance there may be to his power, it is, in the eye of 
the law, nothing. It is not provable, and it is not proved. 
Now, as to the right of Congress to include the additional 
crime, under the authority given to it to punish piracy accord- 
ing to the law of nations, my learned friend contends that this 
statute is limited by that authority, and is, as respects any- 
body within its purview, unconstitutional, and that, although 
a particular act may be within the description of the statute. 



THE SAVANNAH PRIVATEERS 12t 

so far as regards hostility, it is not piracy. On that subject 
I refer your Honors to a very brief proposition contained in 
the case of The United States vs. Pirates (5 Wheaton, 202) : 

"And if the laws of the United States declare those acts 
of piracy in a citizen, when committed on a citizen, which 
would be only belligerent acts when committed on others, 
there can be no reason why such laws should not be enforced. 
For this purpose the 9th section of the Act of 1790 appears 
to have been passed. And it would be difficult to induce 
this Court to render null the provisions of that clause, by 
deciding either that one who takes a commission under a 
foreign power, can no longer be deemed a citizen, or that all 
acts committed under such a commission, must be adjudged 
belligerent, and not piratical acts." 

I would also refer to the case of The Invincible, to 
which my learned friend called the attention of the Court, 
in the opinion of the late Attorney General, Mr. Butler. It 
is to be found in the 3rd volume of the Opinions of the 
Attorneys General, page 120. My learned friend cited 
this case in reference to the proposition that persons holding 
a commission (as I understood him) should not be treated as 
pirates, under the law of nations, by reason of any particular 
views or opinions of our Government. I refer to that part 
of the opinion where he says: "A Texan armed schooner can- 
not be treated as a pirate under the Act of April 30th, 1790, 
for capturing an American merchant-man, on the alleged 
ground that she was laden with provisions, stores, and muni- 
tions of war for the use of the army of Mexico, with the Gov- 
ernment of which Texas, at the time, was in a state of revolt 
and civil war." 

Now, undoubtedly, Mr. Butler does here hold that, by 
the law of nations, in a controversy between revolting Col- 
onies and the parent State, where our Government recog- 
nizes a state of war as existing, a privateer cannot be treated 
as a pirate. But we will come to the opinion of the At- 



128 SPEECHES OF WTLLL\]M ]\L\X\MELL EVARTS 

torney-General on the other proposition we contend for — 
that is, in support of the 9th section of the statute, as far 
as it would have exposed citizens of the United States to 
the penalty of piracy: 

"In answer to this question, I have the honor to state that, 
in my opinion, the capture of the American ship Pocket 
can in no view of it be deemed an act of piracy, unless it shall 
appear that the principal actors in the capture were citizens of 
the United States. The ninth section of the Crimes Act of 
30th April, 1790, declares 'that if any citizen shall commit 
any piracy or robbery, or any act of hostility against the 
United States, or any citizen thereof, upon the high seas, 
under color of any commission from any foreign Prince, 
or State, or on pretence of authority from any person, such 
offender shall, notwithstantling the pretence of any such 
authority, be deemed, adjudged and taken to be a pirate, 
felon and robber, and on being thereof convicted, shall suffer 
death.' This j)rovision is yet in force, and should it be found 
that any of those icho participated in the capture of the Pocket 
are American citizens, the flag and commission of the Govern- 
ment of Texas would not protect them from the charge of piracy." 

It will be seen here, that the condition of belligerents will 
not protect our citizens from aggressions against our com- 
merce; and there is no place for my learned friends to put this 
authority, and this assumed belligerent power and right, on 
any footing that must not make it, either actually or in 
pretence, at least, proceed from a separate contending power. 
And, if they say (as, in one of their points substantially is 
said) that the 9th section cannot apply, because the alleged 
authority is not from a foreign State, or a foreign personage, 
but from a personage of our own country, — why, then, we 
are thrown back at once to the 8th section entirely, and 
there is either no pretence of authority at all, and it is just 
like arguing that the pirate accused was authorized by the 
merchant owner of a vessel in South street to commit piracy, 



THE SAVANNAH PRIVATEERS 129 

or we are put in the position, which is unquestionably the 
true one, that the 9th section was intended to cover all pos- 
sible although unimagined forms in which the justice of the 
country could be attempted to be impeded under the claim 
of authority. 

Now, gentlemen, if the Court please, I come to a con- 
sideration of the political theories or views on which these 
prisoners are sought to be protected against the penalties 
of this law. In that argument, as in my argument, it must 
be assumed that these penalties, but for those protections, 
would be visited upon them; for we are not to be drawn 
hither and thither by this inquiry, and to have it said, at one 
time, that the crime itself, in its own nature, is not proved, 
and, at another time, that, if it be proved, these are defences. 
I have said all I need to say, and all I should say, about the 
crime itself. The law of the case on that point will be given 
to you by the Court, and, if it should be, as I suppose it must, 
in accordance with that laid down by the Court in the Cir- 
cuit of Pennsylvania, then, as my learned friend Mr. Brady 
has said of that, that he could not see how the Jury could 
find any verdict but guilty, it necessarily follows, if that is 
a sound view of the law, that you cannot find any other 
verdict but guilty. I proceed, therefore, to consider these 
other defences which grow out of the particular circum- 
stances of the piracy. 

Now, there are, as I suggested, three views in which this 
subject of the license, or authority, or protection against 
our criminal laws in favor of these prisoners, is urged, from 
their connection with particular occurrences disclosed in the 
evidence. One is, that they are privateers; but I have shown 
you that, to be privateers, their commission must come from 
an independent nation, or from an incipient nation, which 
our Government recognizes as such. Therefore, they fail 
entirely to occupy that explicit and clear position, under the 
law of the land and the law of nations. But, as they say, 
11 



130 SPEECHES OF A\TLLIA]M MAXWELL EVARTS 

they are privateers either of a nation or a Power that exists, 
as the phrase is, de jure, — that has a right, the same as we, or 
England, or France, — or a Power that has had sufficient 
force and strength to estabhsh itself, as matter of fact. 
Without considering the question of right, as recognized 
under the system of nations, they contend, and with a great 
deal of force and earnestness, in the impression of their views 
upon the Jury, and great skill and discretion in handling 
the matter, — they contend that there is a state of civil war 
in this country, and that a state of civil war gives to all 
nations engaged in it, against the Government with which 
they are warring, rights of impunity, of protection, of re- 
spect, of regard, of courtesy, which belong to the laws of 
war; and that, without caring to say whether they are a 
Government, or ever will be a Government, so long as they 
fight they cannot be punished. 

That is the proposition — there is nothing else to it. They 
come down from the region of de jure Government and 
de facto Government, and have nothing to prove but the 
rage of war on the part of rebels, in force enough to be called 
war. Then they say that, by their own act, they are lib- 
erated from the laws, and from their duty to the laws, 
which would otherwise, they admit, have sway over them, 
and against which they have not as yet prevailed. That is 
the proposition. 

Another proposition, on which they put themselves, is 
that whatever may be the law, and whatever the extent of 
the facts, if any of these persons believed that there was a 
state of war, rightful to be recognized, and believed, in good 
faith, that they were fighting against the Government of the 
United States, they had a right to seize the property of 
United States' citizens; and that, if they believed that they 
constituted part of a force co-operating, in any form or ef- 
fect, with the military power which has risen up against 
the United States of America, then, so long as they had that 



THE SAVANNAH PRIVATEERS 131 

opinion, they, by their own act, and their own construction 
of their own act, impose the law upon this Government, 
and upon this Bench, and upon this Jury, and compel you 
to say to them that if, in taking in a manner which would 
have been robbery, this vessel, the Joseph, they were also 
fighting against the United States of America, they have not 
committed the crime of piracy. 

Now, if the Court please, and gentlemen of the Jury, let 
us, before we explore and dissect these propositions, — be- 
fore we discover how utterly subversive they are of any 
notions of Government, of fixity in the interpretation of the 
law, or certainty in the enforcement of it, — let us see what 
you will fairly consider as being proved, as matter of fact, 
concerning the condition of affairs in this country. Let us 
see what legal discrimination or description of this state of 
things is likely to be significant and instructive, in deter- 
mining the power and authority of the Government, and the 
responsibility of these defendants. They began with an 
Ordinance of South Carolina, passed on the 20th of Decem- 
ber of last year, which, in form and substance, simply an- 
nulled the Ordinance of that State, with which, as they say, 
they ratified or accepted the Constitution of the United 
States. They then went on with similar proceedings on the 
part of the States of Georgia, Alabama, Mississippi, and Flor- 
ida, showing the establishment and adoption of a Provisional 
Constitution, by which they constituted and called themselves 
the Confederate States of America. They proved, then, 
the organization of the Government, the election of Mr. 
Davis and Mr. Stephens as President and Vice-President, 
and the appointment of Secretaries of War, and of the 
Navy, and other portions of the civil establishment. They 
proved, then, the occurrences at Fort Sumter, and gave 
particular evidence of the original acts at Charleston — the 
firing on the Star of the West, and the correspondence which 
then took place between Major Anderson and the Governor 



132 SPEECHES OF WILLIAM :MAXWELL EVARTS 

of South Carolina. They then went on to prove the evacu- 
ation of Fort Moultrie; the storming of Fort Sumter; the 
Proclamation of the President of the United States, of the 
15th of April, calling for 7o,000 troops; Mr. Davis's Proc- 
lamation, of the 17th of April, inviting privateers; and then 
the President's Proclamation, of the 19th of April, denounc- 
ing the punishment of piracy against privateers, and putting 
under blockade the coasts of the revolted States. The laws 
about privateering passed by what is called the Confederate 
Government, have, also, been read to you; and this seems to 
complete the documentary, and constitutional, and statu- 
tory proceedings in that disaffected j)ortion of the country. 
But what do the j)risoners prove further? That an actual 
military conflict and collision commenced, has proceeded, 
and is now raging in this country, wherein we find, not one 
section of the country engaged in a military contest with 
another section of the country — not two contending factions, 
in the phrase of Vattel, dividing the nation for the feake of 
national power — but the Government of the United States, 
still standing, without the diminution of one tittle of its 
power and dignity — without the displacement or disturb- 
ance of a single function of its executive, of its legislative, 
of its judicial establishments — without the disturbance or 
the defection of its army or its navy — without any displace- 
ment in or among the nations of the world — without any 
retreat, on its part, or any repulsion, on the part of any force 
whatever, from its general control over the affairs of the 
nation, over all its relations to foreign States, over the high 
seas, and over every part of the United States themselves, 
in their whole length and breadth, except just so far as 
military occupation and military contest have controlled 
the peaceful maintenance of the authority and laws of the 
Government. 

Now, this may be conceded for all sides of the controversy. 
I do not claim any more than these proofs show, and what 



THE SAVANNAH PRIVATEERS 133 

we all know to be true; and I am but fair in conceding that 
they do show all the proportions and extent which make up a 
contest by the forces of the nation, as a nation, against an 
armed array, with all the form and circumstances, and with 
a number and strength, which make up military aggression 
and military attack on the part of these revolting or disaf- 
fected communities or people. 

Now, some observations have been made, at various stages 
of this argument, of the course the Government has taken 
in its declaration of a blockade, and in its seizure of prizes 
by its armed vessels, and its bringing them before the Prize 
Courts; and my learned friend, Mr. Brady, has done me the 
favor to allude to some particular occasion on which I, on 
behalf of the Government, in the Admiralty Court, have 
contended for certain principles, which would lead to the 
judicial confiscation of prizes, under the law of the land, or 
under the law of nations adopted and enforced as part of 
the law of the land. Well, now, gentlemen, I understand 
and agree that, for certain purposes, there is a condition of 
war which forces itself on the attention and duty of Govern- 
ments, and calls on them to exert the power and force of 
war for their protection and maintenance. And I have had 
occasion to contend — and the learned Courts have decided — 
that this nation, undertaking to suppress an armed military 
rebellion, which arrays itself, by land and by sea, in the forms 
of naval and military attack, has a right to exert — under the 
necessary principles which control and require the action 
of a nation for its own preservation, in these circumstances of 
danger and of peril — not only the usual magisterial force of the 
country — not only the usual criminal laws — not only such 
civil posses or aids to the officers of the law as may be ob- 
tained for their assistance — but to take the army and the 
navy, the strength and manhood of the nation, which it can 
rally around it, and in every form, and by every authority, 
human and divine, suppress and reduce a revolt, a rebellion, 



134 SPEECHES OF ^MLLIAM MVXWELL EVARTS 

a treason, that seeks to overthrow this Government in, at 
least, a large portion of its territory, and among a large por- 
tion of its people. In doing so, it may resort — as it has re- 
sorted — to the method of a warlike blockade, which, by 
mere force of naval obstruction, closes the harbors of the 
disaffected portion of the country against all commerce. 
Having done that, it has a right, in its Admiralty Courts, 
to adjudicate upon and condcnm as prizes, under the laws 
of blockade, all vessels that shall seek to violate the block- 
ade. Nor, gentlemen, have I ever denied — nor shall I here 
deny — that, when the proportions of a civil dissension, or 
controversy, come to the port and dignity of war, good 
sense and common intelligence require the Government to 
recognize it as a question of fact, according to the actual 
circumstances of the case, and to act accordingly. I, 
therefore, have no difhculty in conceding that, outside of 
any question of law and right — outside of any question as to 
wliether there is a Government down there, whether nominal 
or real, or that can be described as having any consistency 
of any kind, untler our law and our Government — there is 
prevailing in this country a controversy, which is carried on 
by the methods, and which has the proportions and extent, 
of what we call war. 

War, gentlemen, as distinguished from peace, is so dis- 
tinguished by this proposition — that it is a condition in 
which force on one side and force on the other are the means 
used in the actual prosecution of the controversy. Now, 
gentlemen, if the Court please, I believe that that is all 
that can be claimed, and all that has been claimed, on behalf 
of these prisoners, in regard to the actual facts, and the 
condition of things in this country. And I admit that, if 
this Gov^ernment of ours were not a party to this controversy, 
— if it looked on it from the outside, as England and France 
have done, — our Government would have had the full right 
to treat these contending parties, in its Courts and before 



THE SAVANNAH PRIVATEERS 135 

its laws, as belligerents, engaged in hostilities, as it would 
have had an equal right to take the opposite course. Which 
course it would have taken, I neither know, nor should you 
require to know. 

But, I answer to the whole of this, if the Court please, 
that it is a war in which the Government recognizes no right 
whatever on the part of the persons with whom it is con- 
tending; and that, in the eye of the law, as well as in the eye 
of reason and sound political morality, every person who has, 
from the beginning of the first act of levying war against 
the United States until now, taken part in this war, actively 
and effectively, in any form — who has adhered to the rebels — 
who has given aid, information, or help of any kind, wherever 
he lives, whether he sends it from New Hampshire or New 
York, from Wisconsin or Baltimore — whether he be found 
within or without the armed lines — is, in his own overt ac- 
tions, or open espousal of the side of this warring power, 
against the Government of the United States, a traitor and 
a rebel. I do not know that there is any proposition what- 
ever, of law, or any authority whatever, that has been ad- 
duced by my learned friends, in which they will claim, as 
matter of law, that they are not rebels. I invited the atten- 
tion of my learned friends, as I purposed to call that of the 
Court, to the fact, that the difficulty about all this business 
was, that the plea of authority or of war, which these pris- 
oners interposed against the crime of piracy, was nothing 
but a plea of their implication in treason. I would like to 
hear a sober and solemn proposition from any lawyer, that a 
Government, as matter of law, and a Court, as matter of 
law, cannot proceed on an infraction of a law against violence 
either to person or property, instead of proceeding on an 
indictment for treason. The facts proved must, of course, 
maintain the personal crime; and there are many degrees of 
treason, or facts of treason, which do not include violent crime. 
But, to say that a person who has acted as a rebel cannot 



136 SPEECHES OF WILLIAM MAX^^'ELL EVARTS 

be indicted as an assassin, or that a man who has acted, on 
the high seas, as a pirate, if our statutes so pronounce him, 
cannot be indicted, tried and convicted as a pirate, because he 
could plead, as the shield of his ])iracy, that he committed 
it as part of his treason, is, to my api)rehension, entirely new, 
and inconsistent with the first principles of justice. 

Now, this very statute of j)iracy is really a general Crimes 
Act. The first section is: 

"If any person or persons owing allegiance to the United 
States of America shall levy war against them, or shall ail- 
here to their enemies, giving them aid and comfort within 
the United States, or elsewhere, and shall l)e thereof con- 
victed," "such person or persons shall be adjudged guilty 
of treason against the United States, and shall suffer death." 

Now, you will observe that treason is not a defence against 
piracy; nor is good faith in treason a defence against treason, 
or a defence against piracy. What would be the posture of 
these prisoners, if, instead of being indicted for piracy, 
they were indicted for treason? Should we then hear 
anything about this notion that there was a war raging, 
and that they were a party engaged in the war? Why, that 
is the very definition of treason. Against whom is the war? 
Against the United States of America. Did you ow^e alle- 
giance to the United States of America? Yes, the citizens 
did; and I need not say to you, gentlemen, that those resi- 
dents who are not citizens ow^e allegiance. There is no 
dispute about that. Those foreigners who are living here 
unnaturalized are just as much guilty of treason, if they act 
treasonably against the Government, as any of our own 
citizens can be. That is the law of England, the law of 
treason, the necessary law of civilized communities. If we 
are hospitable, if w^e make no distinction, as we do not, in 
this country, between citizens, and foreigners resident here 
and protected by our laws, it is very clear we cannot make 
any distinction w^hen we come to the question of who are 



THE SAVANNAH PRIVATEERS 137 

faithful to the laws. So, therefore, if they were indicted for 
treason, what would become of all of this defence? It 
would be simply a confession in open Court that they were 
guilty of treason. Well, then, if they fell back on the prop- 
osition, — "We thought, in our consciences and judgments, 
that either these States had a right to secede, or that 
they had a right to carry on a revolution; that they were 
oppressed, and were entitled to assert themselves against 
an oppressive Government, and we, in good faith, and with 
a fair expectation of success, entered into it," — what would 
become of them.^ The answer would be, "Good faith in 
your attempt to overthrow the Government does not excuse 
you from responsibility for the crime of attempting it." 
Our statute is made for the purpose of protecting our Gov- 
ernment against efforts made, in good faith or in bad faith, 
for its overthrow. 

And now, in this connection, gentlemen, as your atten- 
tion, as well as that of the Court, has been repeatedly called 
to it, let me advert again to the citation from that en- 
lightened public writer, Vattel, who has done as much, 
perhaps, as our learned friends have suggested, to place on a 
sure foundation the amelioration of the law of nations in 
time of war, and their intercourse in time of peace, as any 
writer and thinker whom our race has produced. You re- 
member, that he asks — How shall it be, when two contend- 
ing factions divide a State, in all the forms and extent of 
civil war — what shall be the right and what the duty of a 
sovereign in this regard .f* Shall he put himself on the pride 
of a king, or on the flattery of a courtier, and say, I am still 
monarch, and will enforce against every one of this multi- 
tude engaged in this rebellion the strict penalties of my laws.?^ 
Vattel reasons, and reasons very properly: You must submit 
to the principles of humanity and of justice; you must gov- 
ern your conduct by them, and not proceed to an extermina- 
tion of your subjects because they have revolted, whether 



138 SPEECHES OF WILLL\M MAXWELL EVARTS 

witli or without cause. You must not enforce the sanctions 
of your Government, or maintain its autliority, on methods 
which would produce a destruction of your people. And you 
must not further, by insisting, under the enforced circum- 
stances which surround you, on the extreme and logical right 
of a king, furnish occasion for the contending rebels, who 
have their moments of success and power, as well as you, to 
retaliate on your loyal people, victims of their struggle on 
your behalf, and thrown into the power of your rebellious 
subjects, — to retaliate, I say, on them the same extreme i)en- 
alties, without right, without law, but by mere power, which 
you have exerted under your claim of right. 

And now, gentlemen of the Jury, as the Court very well 
understands, this general reasoning, which should govern 
the conduct of a Sovereign, or of a Government, against a 
mere local insurrection, does not touch the question as to 
whether the law of a nation in which the sovereign presides, 
and in violation of which the crime of the rebels has been 
perpetrated, shall be enforced. There has been, certainly 
in modern times, no occasion when a Sovereign has not 
drawn, in his discretion, and under the influence of these 
principles of humanity and justice, this distinction, and has 
not interposed the shield of his own mercy between the of- 
fences of misled and misguided masses of his people and of- 
fended laws. We know the difference between law and 
its condemnation, and mercy and its saving grace; and we 
know that every Government exercises its discretion. And, 
I should like to know why these learned counsel, who are 
seeking to interpose, as a legal defence on the part of a 
criminal, the principles of policy and mercy which should 
guide the Government, are disposed to insist that this 
Government, in its prosecutions and its trials, has shown a 
disposition to absolve great masses of criminals from the 
penalties of its laws. I should like to know, when my 
learned friend Mr. Brady, near the close of his remarks, sug- 



THE SAVANNAH PRFV^ATEERS 139 

gested that there had been no trial for treason, whether this 
Government, from the first steps in the outbreak, down to the 
final and extensive rage of the war, has not foreborne to take 
satisfaction for the wrongs committed against it, and has 
not been disposed to carry on and sustain the strength of 
the Government, without bloody sacrifices for its main- 
tenance, and for the offended justice of the land. But it is 
certainly very strange if, when a Government influenced by 
those principles of humanity of which Vattel speaks, and 
which my learned friends so much insist upon, has foreborne, 
except in signal instances, or, if you please, in single instances 
that are not signal, to assert the standard of the law's 
authority and of the Government's right, — that it may be 
seen that the sword of justice, although kept sheathed for 
the most part, has yet not rusted in its scabbard, and that 
the Government is not faithless to itself, or to its laws, its 
powers, or its duties, in these particular prosecutions that 
have been carried, one to its conclusion in Philadelphia, 
and the other to this stage of its progress, here, — it is strange, 
indeed, that the appeal is to be thrust upon it — "Do not 
include the masses of the misguided men!" and, when it 
yields so mercifully to that appeal, and says — "I will limit 
myself to the least maintenance and assertion of a right," 
that the answer is to come back: "Why, how execrable — how 
abominable, to make distinctions of that kind!" 

But, gentlemen, the mercy of the Government, as I have 
said to you, remains after conviction, as well as in its deter- 
mination not to press numerous trials for treason; but it is 
an attribute, both in forbearing to try and in forbearing to 
execute, which is safely left where the precedents that are 
to shape the authority of law cannot be urged against its 
exercise. Now, I look upon the conduct and duty of the 
Government on somewhat larger considerations than have 
been pressed before you here. The Government, it is said, 
does not desire the conviction of these men, or, at least. 



140 SPEECHES OF WILLIA^I MAXWELL EVARTS 

should not desire it. The Government does not desire the 
blood of any of its misguided people. The Government — 
the prosecution — should have no passion, no animosities, 
in this or in any other case; and our learned friends have 
done us the favor to say that the case is presented to you as 
the law should require it to be; that you, and all, are unaf- 
fected and unimpeded in your judgment; and that, with a 
full hearing of what could be said on the part of these crimi- 
nals, you have the case cantlidly and openly before you. 
Now, gentlemen, the Government, although having a large 
measure of discretion, has no right, in a country where the 
Government is one wholly of law, to repeal I lie criminal 
law, and no right to leave it without presenting it to the ob- 
servation, the understanding, and the recognition of all its 
citizens, whether in rebellion or not, in its majesty, in its 
might, and in its impartiality. The Government has be- 
hind it the peo])le, and it has behind it all the great forces 
which are breathing on our agitated society, all the strong 
passions, all the deep emotions, all the powerful convictions, 
which impress the loyal j)eo])le of this country as to the 
outrage, as to the wickedness, as to the perils of this great 
rebellion. Do you not recollect how, when the proclama- 
tion of Mr, Davis invited marauders to prey upon our com- 
merce, from whatever quarter and from whatever motives — 
(patriotism and duty not being requisite before they would 
be received) — the cry of the wounded sensibilities of a great 
commercial people burst upon this whole scene of conflict? 
What was there that as a nation we had more to be proud of> 
more to be glad for in our history, than our flag? To think 
that in an early stage of what was claimed to be first a con- 
stitutional, and then a peaceful, and then a deliberate politi- 
cal agitation and maintenance of right, this last extreme act, 
the arming of private persons against private property on 
the sea, was appealed to before even a force was drawn on 
the field on behalf of the United States of America ! The 



THE SAVANNAH PRIVATEERS 141 

proclamation of the President was but two days old when 
privateers were invited to rush to the standard. The 
indignation of the community, the sense of outrage and 
hatred was so severe and so strong, that at that time, if the 
sentiment of the people had been consulted, it would have 
found a true expression in what was asserted in the news- 
papers, in public speeches, in private conversations — that 
the duty of every merchantman and of every armed vessel 
of the country, which arrested any of these so-called pri- 
vateers, under this new commission, without a nation and 
without authority, was to treat them as pirates caught in 
the act, and execute them at the yard-arm by a summary 
justice. Well, I need not say to you, gentlemen, that I am 
sure you and I and all of us would have had occasion to 
regret, in every sense, as wrong, as violent, as unnecessary, 
and, therefore, as wholly unjustifiable, on the part of a 
powerful nation like ourselves, any such rash execution of 
the penalties of the law of nations, and of the law of the land, 
while our Government had power on the sea, had authority 
on the land, had Courts and laws and juries under its author- 
ity to inquire and look into the transaction. 

The public passions on this subject being all cool at this 
time, after an interval of four months or more from the ar- 
rest, we are here trying this case. Yet my learned friends 
can find complaint against the mercy of the Government 
and its justice, that it brings any prosecution; and great 
complaint is made before you, without the least ground or 
cause, as it seems to me, that the prosecution is pressed in a 
time of war, when the sentiments of the community are 
supposed to be inflamed. 

Well, gentlemen, what is the duty of Government, when 
it has brought in prisoners arrested on the high seas, but to 
deliver them promptly to the civil authorities, as was done 
in this case — and then, in the language of the Constitution, 
which secures the right to them, to give them a speedy and 



142 SPEECHES OF ^^^LLIAM MAXWELL EVARTS 

impartial trial? That it is impartial, they all confess, IIow 
speedy is it? They say, they repret that it proceeds in time 
of war. Surclv, our learned friends do not wish to be under- 
stood as having had denied to them in this Court any ap- 
plication which they have made for post])()nement. The 
promptness of the judicial and prosecuting authorities here 
had produced tliis indictment in the month of June, I 
believe, the very month in which the prisoners were arrested, 
or certainlv carlv in Julv; and then the (ioverninent was 
ready to proceed with the trial, so far as I am advised. Hut, 
at any rate, an application — a very proper and necessary 
application — was made by our learned friends, that the trial 
should be postponed till. I believe, the very day on which it 
was brought on. That a})plicati()n was not objected to, was 
acquiesced in, and the time was fixed, and no further sugges- 
tion was made that the prisoners desired further delay; and, 
if the Government had undertaken to ask for further delay, 
on the ground of being unprepared, there was no fact to 
sustain any such a})plication. If it was the wish of the 
prisoners, or for their convenience, that there should be 
further delay, it was for them to suggest it. But, being 
entitled by the Constitution to a speedy as well as an im- 
partial trial, and the day being fixed by themselves on which 
they would be ready, and they being considered ready, and 
no difficulty or embarrassment in the way of proof having 
been suggested on the part of the Government, it seems to 
me very strange that this regret should be expressed, unless 
it should take that fomi of regret which all of us partici- 
pate in, that the war is not over. That, I agree, is a sub- 
ject of regret. But how there has ever been any pressure, 
or any — the least — exercise of authority adverse to their 
wishes in this matter, it is very difficult for me to under- 
stand. 

Now, gentlemen, I approach a part of this discussion which 
I confess I would gladly decline. I have not the least ob- 



THE SAVANNAH PRIVATEERS 143 

jection — no one, I am sure, can feel the least objection — to 
the privilege or supposed duty of counsel, who are defending 
prisoners on a grave charge, — certainly not in a case which 
includes, as a possible result, the penalty of their clients' 
lives, — to go into all the inquiries, discussions and arguments, 
however extensive, varied, or remote, that can affect the 
judgment of the Jury, properly or fairly, or that can rightly be 
invoked. But, I confess that, looking at the very inter- 
esting, able, extensive and numerous arguments, theories 
and illustrations, that have been presented in succession by, 
I think, in one form or another, seven counsel for these 
prisoners, as the introduction into a judicial forum, and 
before a Jury, of inquiries concerning the theories of Gov- 
ernment, the course of politics, the occasion of strife on one 
side or the other, within the region of politics and the region 
of peace, in any portion of the great communities that com- 
posed this powerful nation — in that point of view, I aver 
they seem to me very little inviting and instructive, as they 
certainly are extremely unusual in forensic discussions. 
Certainly, gentlemen of the Jury, we must conceive some 
starting point somewhere in the stability of human affairs, 
as they are entrusted to the control and defence of human 
Governments. But, in the very persistent and resolute 
views of the learned counsel upon this point — first on the 
right of secession as constitutional; second, if not con- 
stitutional, as being supposed by somebody to be constitu- 
tional; third, on the right of revolution as existing on the 
part of a people oppressed, or deeming themselves oppressed, 
to try their strength in the overthrow of the subsisting 
Government; fourth, on the right to press the discontents 
inside of civil war; and then finally and at last, that whoever 
thinks the Government oppresses him, or thinks that a 
better Government would suit his case, has not only the 
right to try the venture, but that, unsuccessful, or at any 
stage of the effort, his right becomes so complete that the 



144 SPEECHES OF WILLIAM ^L\X^^TLL EVARTS 

Government must and should surrender at once and to 
every attempt — I see only what is equivalent to a subver- 
sion of Government, land to saying that the right of revolution, 
in substance and in fact, involves the right of Government 
in the first place, and its duty in the second place, to sur- 
render to the revolutionist, and to treat him as having 
overthrown it in point of law, and in contemplation of its 
duty. That is a proposition which I cannot understand. 

Nevertheless, gentlemen, these subjects have been so ex- 
tensively opened, and in so many j^oints attacks have been 
made upon what seems to me not only the very vital struc- 
ture and necessary support of this, our Government, but the 
very necessary and indispensable support of any Govern- 
ment whatever, and we have been so distinctly challenged, 
both on the ground of an absolute right to overthrow this 
Government, whenever any State thinks fit — and, next, 
upon the clear right, on general principles of human equity, 
of each State to raise itself against any Government with 
which it is dissatisfied — and ui)on the general right of con- 
science — as well as on the complete support by what has 
been assumed to have been the parallel case, on all those 
principles, of the conduct of the Colonies which became the 
United States of America and established our Government — 
that I shall find it necessary, in the discharge of my duty, to 
say something, however briefly, on that subject. Now, 
gentlemen, these are novel discussions in a Court of Justice, 
within the United States of America. We have talked about 
the oppressions of other nations, and rejoiced in our exemp- 
tion from all of them, under the free, and benignant, and 
powerful Government which was, by the favor of Providence, 
established by the wisdom, and courage, and virtue of our 
ancestors. We had, for more than two generations, reposed 
under the shadow of our all-protecting Government, with 
the same conscious security as under the firmament of the 
heavens. We knew, to be sure, that for all that made life 



THE SAVANNAH PRIVATEERS 145 

hopeful and valuable — for all that made life possible — we 
depended upon the all-protecting power, and the continued 
favor of Divine Providence. We knew, just as well, that, 
without civil society, without equal and benignant laws, 
without the administration of justice, without the main- 
tenance of commerce, without a suitable Government, wath- 
out a powerful nationality, all the motives and springs of 
human exertion and labor would be dried up at their source. 
But we felt no more secure in the Divine promise that "sum- 
mer and winter, seed-time and harvest," should not cease, 
than we did in the permanent endurance of that great fabric 
established by the wisdom and the courage of a renowned 
ancestry, to be the habitation of liberty and justice for us 
and our children to every generation. We felt no solicitude 
whatever that this great structure of our constitutional 
liberties should pass away as a scroll, or its firm power crumble 
in the dust. But, by the actual circumstances of our situa- 
tion, — and, if not by them, certainly by the destructive 
theories which are presented for your consideration, — it 
becomes necessary for us, as citizens, and, in the judgment 
at least of the learned counsel, for these prisoners, for you, 
and for this learned Court, in the conduct of this trial, and in 
the disposition of the issue of "guilty " or "not guilty " as to 
these prisoners, to pay some attention to these considerations. 
If, in the order of this discussion, gentlemen, I should not 
seem to follow in any degree, or even to include by name, 
many of the propositions, of the distinctions, and of the 
arguments which our learned friends have pressed against 
the whole solidity, the whole character, the whole per- 
manence, the whole strength of our Government, I yet think 
you will find that I have included the principal ideas they 
have advanced, and have commented upon the views that 
seem to us — at least so far as we think them to be at all 
connected with this case — suitable to be considered. 

Now, gentlemen, let us start with this business where our 

12 



146 SPEECHES OF \\TLLIA^I ALVX^VELL EVARTS 

friends, in their argument, where many of the philosophers, 
and partisans, and statesmen of the Southern people, have 
found many of their grounds of support. Let us start with 
this very subject of the American Revolution, with the condi- 
tion that we were in, and with the place that we found our- 
selves raised to, among the nations of the earth, as the result 
of that great transaction in the affairs of men. What were 
we before the Revolution commenced? Was any one of 
the original thirteen States out of which our nation was made, 
and which, previous to the Revolution, were Colonies of 
Great Britain — was any one of them an independent nation 
at the time they all slumbered under the protection of the 
British Crown? Why, not only had they not the least 
pretension to be a nation, any of them, but they had scarcely 
the position of a thoroughly incorporated part of the great 
nation of England. Now, how did they stand towards the 
British power, and under what motives of dignity, and im- 
portance, and necessity did they undertake their severance 
from the parent country? With all their history of coloniza- 
tion, the settlement of their different charters, and the 
changes they went through, I will not detain you. For 
general purposes, we all know enough, and I, certainly not 
more than the rest of you. This, however, was their con- 
dition. The population were all subjects of the British 
Crown; and they all had forms of local Government which 
they had derived from the British Crown; and they claimed 
and possessed, as I suppose, all the civil and political rights 
of Englishmen. They were not subject to any despotic 
power, but claimed and possessed that right to a share in 
the Government, which was the privilege of Englishmen, and 
under which they protected themselves against the encroach- 
ment of the Crown. But, in England, as you know, the 
monarch was attended by his Houses of Parliament, and 
all the power of the Government was controlled by the 
people, through their representatives in the House of Com- 



THE SAVANNAH PRIVATEERS 147 

mons. And how? Why, because, although the King had 
prerogatives, executive authority, a vast degree of pomp and 
wealth, and of strength, yet the people, represented in the 
House of Commons, by controlling the question of taxation, 
held all the wealth of the kingdom — the power of the purse, 
as it was described — and without supplies, without money 
for the army, for the navy, for all the purposes of Govern- 
ment, what authority, actual and effective, had the Crown 
of England? These were the rights of Englishmen; these 
made them a free people, not subject to despotic power. 
They cherished it and loved it. Now, what relation did 
these Colonies, becoming off-shoots from the great fabric 
of the national frame of England, bring with them, and 
assert, and enjoy here? Why, the king was their king, 
just as he was the king of the people whom they left in 
England, but they had their legislatures here, which made 
their laws for them in Massachusetts, in Connecticut, in 
Virginia, in South Carolina, and in the rest of these provinces; 
and among these laws, in the power of law-making, they had 
asserted, and possessed, and enjoyed the right of laying 
taxes for the expenses and charges of their Government. 
They formed no part of the Parliament of England, but, 
as the subjects of England within the four seas were obe- 
dient to the king, and were represented in the Parliament 
that made laws for them, the Colonies of America were sub- 
ject to the king, but had local legislatures to pass laws, 
raise and levy taxes, and graduate the expenses and con- 
tributions which they would bear. 

Now, gentlemen, it is quite true that the local legislatures 
were subject to the revision, as to their statutes, to a certain 
extent, of the sovereign power of England. The king had 
the veto power — as he had the veto power over Acts of Par- 
liament — the power of revision — and other powers, as may 
have been the casual outgrowth of the forms of different 
charters. In an evil hour — as these Colonies, from being 



148 SPEECHES OF \YILLL\]M ]MAX^^TLL EVARTS 

poor, despised, and feeble communities, gained a strength 
and numbers that attracted the attention of the Crown of 
Enghind, as important and productive communities, capable 
of being taxed — the Government undertook to assert, as the 
principle of the Constitution of England, that the king and 
Parliament, sitting in London, could tax as they pleased, 
when they pleased, and in the form, and on the subjects, 
and to the amount, they pleased, the free people of these 
Colonies. 

Now, you will understand, there was not an incidental, 
a casual, a limited subject of controversy, of right, of danger, 
but there was an attack upon the first princijiles of English 
liberty, which prevented the English peoi)le from being the 
subjects of a despot, and an attempt to make us subject to 
a despotic Government, in which we took no share, and in 
which we hatl no control of the i)Ower of the purse. What 
matter did it make to us that, instead of there being a 
despotic authority, in which we had no share or representa- 
tion of vote or voice, exercised by the king alone, it was 
exercised by the king and Parliament? They were both of 
them powers of Government that were away from us, and in 
which we had no share; and we, then, forewarned by the 
voices of the great statesmen whose sentiments have been 
read to you, saw in time that, whatever might be said or 
thought of the particular exercise of authority, the proposi- 
tion was that we were not entitled to the privilege and free- 
dom of Englishmen, but that the power was confined to 
those who resided within the four seas — within the islands 
that made up that Kingdom — and that we were provinces 
which their king and their Parliament governed. Therefore, 
you may call it a question of taxation, and my friend may 
call it "a question of three pence a pound on tea;" but it was 
the proposition that the power of the purse, in this country, 
resided in England. We had not been accustomed to it. 
We did not believe in it. And our first revolutionary act 



THE SAVANNAH PRIVATEERS 149 

was to fight for our rights as EngHshmen (subject to the 
King, whose power we admitted), and to assert the rights 
of our local legislature in the overthrow of this usurpation of 
Parliament. Now, of the course which we took before we 
resorted to the violence and vehemence of war, I shall have 
hereafter occasion to present you, very briefly and conclu- 
sively, a condensed recital; but this notion, that we here 
claimed any right to rise up against a Government that was 
in accordance with our rights, and was such as we had made 
it, and as we enjoyed it, equally with all others over whom it 
was exercised — which lies at the bottom of the revolt in this 
country — had not the least place, or the opportunity of a 
place, in our relations with England. We expected and 
desired, as the correspondence of Washington shows — 
as some of the observations of Hamilton, I think, read in 
your presence by the learned counsel, show — as the records 
of history show — we expected to establish security for our- 
selves under the British Crown, and as a part of the British 
Empire, and to maintain the right of Englishmen, to wit, 
the right of legislation and taxation where we were repre- 
sented. But the parent Government, against the voice and 
counsels of such statesmen as Burke, and the warnings of 
such powerful champions of liberty as Chatham, under- 
took to insist, upon the extreme logic of their Constitution, 
that we were British subjects, and that the king and Par- 
liament governed all British subjects; and they had a 
theory, I believe, that we were represented in Parliament, 
as one English jurist put it, in the fact that all the grants in 
all the Colonies were, under the force of English law, "to 
have and to hold as the Manor of East Greenwich," and 
that, as the Manor of East Greenwich was represented in 
Parliament, all this people were represented. But this did 
not suit our notions. The lawyers of this country, the 
Judges of this country and many of the lawyers of England, 
as mere matter of strict legal right, held that the American 



150 SPEECHES OF \MLLIAM ^L\X^^'ELL EVARTS 

view of the Constitution of Enf^land, and of the rights of 
Enghshmen who enjoy it, was the true one. But, at any rate, 
it was not upon an irritation about ])ubhc sentiment; nor was 
it upon the pressure of puhHc taxes; nor because we did not 
constitute a majority of Parliament; nor anything of that 
kind; but it was on clear criteria of whether we were slaves, 
as Hamilton presents it, or part of the free people of a Gov- 
ernment. We, therefore, by degrees, and somewhat uncon- 
scious, perhaps, of our own enlightened progress, but yet 
wisely, fortunately, prosperously, determined ujjon our inde- 
pendence, as the necessary means of securing those rights 
which were denied to us under the Constitution of our country. 
Now, there was not the least pretence of the right of a 
people to overthrow a Government because they so desire 
— which seems to be the ])roi)osition here — because they 
think they do not like it — and because there are some points 
or difficulties in its working that they would like to have 
adjusted. No; it was on the mere proposition that the 
working of the administration in England was converting 
us into subjects, not of the Crown, with the rights of English- 
men, but subjects of the despotic power of Parliament and 
the King of England. Now, how did we go to work, and 
what was the result of that Revolution? In the first place, 
did we ever become thirteen nations? Was Massachusetts 
a nation? Was South Carolina a nation? Did either of 
them ever declare its independence, or ever engage in a war, 
by itself and of itself, against England, to accomplish its 
independence? No, never; the first and preliminary step 
before independence was union. The circumstances of the 
Colonies, we may well believe, made it absolutely necessary 
that they should settle beforehand the question of whether 
they could combine themselves into one effectual, national 
force, to contend with England, before they undertook to 
fight her. It was pretty plain that Massachusetts could not 
conquer England, or its own independence, and that Vir- 



THE SAVANNAH PRIVATEERS 151 

ginia could not do so, and that the New England States 
alone could not do it, and that the Southern States alone 
could not do it. It was quite plain that New York, Penn- 
sylvania and New Jersey, alone, could not do it; and, there- 
fore, in the very womb, as it were, and preceding our 
birth as a nation, we were articulated together into the 
frame of one people, one community, one nationality. Now, 
however imperfectly, and however clumsily, and however 
unsuitably we were first connected, and however necessary 
and serious the changes which substituted for that inchoate 
shape of nationality the complete, firm, noble and perfect 
structure which made us one people as the United States of 
America, yet you will find, in all the documents, and in all the 
history, that there was a United States of America, in some 
form represented, before there was anything like a separa- 
tion, on the part of any of the Colonies, from the parent 
country, except in these discontents, and these efforts at an 
assertion of our liberties, which had a local origin. 

The great part of the argument of my learned friend rests 
upon the fact that these States were nations, each one of them, 
once upon a time; and, that, having made for themselves 
this Government, they have remained nations, in it and 
under it, ever since, subject only to the Confederate authority, 
in the terms of a certain instrument called a compact, and 
with the reserved right of nationality ready, at all times, to 
spring forth and manifest itself in complete separation of 
any one of the States from the rest. And I find, strangely 
enough, in the argument as well of the promoters of these 
political movements at the South as in the voice of my 
learned friends who have commented on this subject, a 
reference to the early diplomacy of the United States, as 
indicative of the fact that they were separate and independent 
communities — regarded as such by the contracting Powers 
into connection with whom they were brought by their 
treaties and conventions, and, more particularly, in the 



152 SPEECHES OF AMLLL\^I MAX^^T.LL EVARTS 

definitive treaty wliereby their iiidepeiulence was recog- 
nized )\v Great Britain. Now, if tlie Court please, both 
upon the point (if it can be called a point, connected with 
your judicial in(|uiry) that these Colonies were formed into 
a Union before they secured their national indejiendence, 
and that there was no moment of time wherein they were 
not included, either as United Colonies, under the ])arental 
])rotection of Ctreat Britain, or as united in a strujrglin^' 
Provisional Government, or in the perfect Government of 
the Confederation, and. finally, under the present Constitu- 
tion — I apprehend that there can be no doubt that our di- 
plomacy, commencin<,', in 177S, with the Treaty of Alliance 
with France, contains the same enumeration of States that 
is so much relied upon l)y the reasoners for independent 
nationality on the part of all the States. In the preamble 
to the Treaty, found at page 6 of the 8th volume of the 
Statutes at Large, the language was: "The Most Christian 
King and the United States of North America, to wit, New 
Hampshire, etc., having this day concluded," etc. The 
I'nited States are here treated as a strictly single j)ower, 
with whom his Most Christian Majesty comes into league; 
and the credentials or ratifications pursued the same form. 
The Treatv of Commerce with the same nation, made at the 
same time, follows the same idea; and the Treaty with the 
Netherlands, made in ITS'^, contains the same enumeration 
of the States, and speaks of each of the contracting parties 
as being "countries." The Convention with the Nether- 
lands, on page 50 of the same volume, and which was a part 
of the same diplomatic arrangement, and made at the same 
time, speaks, in Article 1, of the vessels of the "two nations." 
Now, the only argument of my learned friends, on the two 
treaties with Great Britain, of November, 1782, and Sep- 
tember, 1783, is, that they are an agreement between 
England and the thirteen nations; and it is founded upon the 
fact, that the United States of America, after being described 



THE SAVANNAH PRIVATEERS 153 

as such, are enumerated under a "viz." as being so many 
provinces. Now, the oth and 6th articles of that Conven- 
tion of 1782 with the Netherlands speak of "the vessels of 
war and privateers of one and of the other of the two na- 
tions." So that, pending the Revolution, we certainly, 
in the only acts of nationality that were possible for a con- 
tending power, set ourselves forth as only one nation, and 
were so recognized. And the same views are derivable from 
the language of the Provisional Treaty with Great Britain of 
November, 1782, and of the Definitive Treaty of Peace 
with Great Britain of September, 1783, which Treaties are 
to be found at pages 54 and 80 of the same 8th volume. The 
Preamble to the latter Treaty recites: 

"It having pleased the Divine Providence to dispose the 
hearts of the most serene and most potent Prince George the 
Third, &c., and of the United States of America to forget all 
past misunderstandings and differences that have unhappily 
interrupted the good correspondence and friendship, which 
they mutually wish to restore; and to establish such a bene- 
ficial and satisfactory intercourse between the two countries, 
&c." 

And then comes the 1st article, which is identical in lan- 
guage with the Treaty with the Netherlands, of 1782: " His 
Britannic Majesty acknowledges the said United States, 
viz., New Hampshire, etc., to be free, sovereign and inde- 
pendent States." 

The United States had previously, in the Treaty, been 
spoken of as one country, and the language I have just 
quoted is only a statement of the provinces of which they 
were composed; for, we all know, as matter of history, that 
there were other British provinces that might have joined in 
this Revolution, and might, perhaps, have been included in 
the settlement of peace ; and this rendered it suitable and 
necessary that the provinces whose independence was ac- 
knowledged should be specifically described. But, in the 



154 SPEECHES OF WILLL\^1 INIAXWELL EVARTS 

2d article, so far from the separateness of the nationalities 
with which the convention was made being at all recognized, 
that important article, which is the one of boundaries, goes 
on to bound the entire nation as one undivided and integral 
territory, without the least attention to the divisions between 
them. It may be very well to say that England was only 
concerned to have one continuous boundary, coterminous to 
her own possessions, described, and that that was the object 
of the geographical bounding; but the entire Western, 
Eastern, and Southern boundaries are gone through as 
those of one integral nation. The 3rd article speaks, again, 
of securing certain rights to the citizens or inhabitants of 
"both countries." Now, that "country" and "nation," in 
the language of diplomacy, are descriptive, not of territory, 
in either case, but of the nationality, admits of no discussion; 
and yet, I believe that the most substantial of all the cita- 
tions and of all the propositions from the documentary evi- 
dence of the Revolution, which seeks to make out the fact 
that we came into being as thirteen nations, grows out of 
this British Treaty, which, in its preamble, takes notice of 
but one country, called the United States of America, and, 
then, in recognition of the United States of America, names 
the States under a "viz." — they being included in the single 
collective nation before mentioned as the United States. 

Now, gentlemen, after the Revolution had completed our 
independence, how were we left as respects our rights, our 
interests, our hopes, and our prospects on this very subject 
of nationality? Why, we were left in this condition — that 
we always had been accustomed to a parent or general 
Government, and to a local subordinate administration of 
our domestic affairs within the limits of our particular prov- 
inces. Under the good fortune, as well as the great wisdom 
which saw that this arrangement — a new one — quite a new 
one in the affairs of men — now that we were completely 
independent, and capable of being masters of our whole 



THE SAVANNAH PRIVATEERS 155 

Government, both local and general, admitted of none of 
these discontents and dangers which belonged to our being 
subject collectively to the dominion of a remote power be- 
yond the seas — under the good fortune and great wisdom 
of that opportunity, we undertook and determined to estab- 
lish, and had already established provisionally, a complete 
Government, which we supposed would answer the purpose 
of having a general representation and protection of our- 
selves toward the world at large, and yet would limit the 
local power and authority, consistently with good and free 
Government, as respected populations homogeneous and 
acquainted with each other, and with their own wants and 
the methods of supplying them. 

The Articles of Confederation, framed during the Revolu- 
tion, ratified at different times during its progress and at its 
close, was a Government under which we subsisted — for how 
long? Until 1787 — but four years from the time that we had 
an independent nationality — we were satisfied with the 
imperfect Union that our provisional Government had orig- 
inated, and that we had shaped into somewhat more con- 
sistency under the Articles of Confederation. Why did we 
not stay under that? VV^e were a feeble community. We 
had but little population, but little wealth. We had but few 
occasions of discontent that belong to great, and wealthy, 
and populous States. But the fault, the difficulty, was, 
that there were in the Confederation too many features 
which our learned friends, their clients here, and theoretical 
teachers of theirs elsewhere, contend, make the distinctive 
character of the American Constitution, as finally developed 
and established. The difficulty was that, although we were 
apparently and intentionally a nation, as respected the rest 
of the world, and for all the purposes of common interest 
and common protection and common development, yet this 
element of separate independency, and these views that the 
Government thus framed operated, not as a Government over 



156 SPEECHES OF WILLIAM MAXWELL EVARTS 

individuals, but as a Government over local communities in 
an organized form, made its working imperfect, impossible, 
and the necessary occasion of dissension, and weakness, and 
hostility, and left it without the least power, except by con- 
tinued force and war, to maintain nationality. 

Now, it was not because we were sovereigns, all of us, be- 
cause we had departed from sovereignty. There was not 
the least right in any State to send an ambassador, or make a 
treaty, or have anything signed; but the vice was, that the 
General Government had no power or authority, directly, 
on the citizens of the States, but had to send its mandates for 
contributions to the common treasury, and its requirements 
for quotas for the common army and the common navy, 
directly to the States. Now, I tarry no longer on this than 
to say, that the brief experience of four years showed that it 
was an impossible proposition for a Government, that there 
should be in it even these imperfect, clipped and crippled 
independencies, that were made out of the original provinces 
and called States. In 1787, the great Convention had its 
origin, and in 1789 the adoption of the Constitution made 
something that was supposed to be, and entitled to be, and 
our citizens required to be, as completely different, on this 
question of double sovereignty, and divided allegiance, and 
equal right of the nation to require and of a State to refuse, 
as was possible. If, indeed, instead of the Confederation 
having changed itself from an imperfect connection of States 
limited and reduced in sovereignty, into a Government 
where the nation is the coequal and co-ordinate power (as 
our friends express it) of every State in it, why suiely our 
brief experience of weakness and disorder, and of contempt, 
such as was visited upon us by the various nations with 
whom we had made treaties, that we could not fulfil them, 
found, in the practical wisdom of the intelligent American 
people, but a very imperfect and unsatisfactory solution, if 
the theories of the learned counsel are correct, that these 



THE SAVANNAH PRIVATEERS 157 

United States are, on the one part, a power, and on the other 
part, thirty-four different powers, all sovereign, and the two 
having complete rights of sovereignty, and dividing the 
allegiance of our citizens in every part of our territory. 

Now, the language of the Constitution is familiar to all 
of you. That it embodies the principle of a General Gov- 
ernment acting upon all the States, and upon you, and upon 
me, and upon every one in the United States; that it has its 
own established Courts — its own mandate by which jurors 
are brought together — its own laws upon all the subjects 
that are attributed to its authority; that there is an estab- 
lishment known as the Supreme Court, which, with the 
appropriate inferior establishments, controls and finally 
disposes of every question of law, and right, and political 
power, and political duty; and that this adjusted system of 
one nation with distributed local power, is, in its working, 
adequate to all the varied occasions which human life devel- 
ops—we all know. We have lived under it, we have pros- 
pered under it, we have been made a great nation, a united 
people, free, happy, and powerful. 

Now, gentlemen, it is said — and several points in our 
history have been appealed to, as well as the disturbances 
that have torn our country for the last year — that this com- 
plete and independent sovereignty of the States has been 
recognized. Now, there have been several occasions on 
which this subject has come up. The first was under the 
administration of the first successor of General V^^ashington — 
John Adams — when the famous Virginia and Kentucky 
resolutions had their origin. About these one of my learned 
friends gave you a very extensive discussion, and another 
franklv admitted that he could not understand the doctrine 
of co-ordinate, equal sovereignty of two powers within the 
same State. On the subject of these Virginia resolutions, 
and on the question of whether they were the recognized 
: doctrines of this Government, I ask your attention to but 



158 SPEECHES OF WILLUM IVIAXWELL EVARTS 

one consideration of the most conclusive character, and to 
be disposed of in the briefest possible space. 

The proposition of the Virginia resolutions was, that the 
States who are parties to the compact have the right and are 
in duty bound to interpose to arrest the progress of the evil 
(that is, when unconstitutional laws are passed), and to 
maintain, within their respective limits, the authority, rights, 
and liberties pertaining to them. That is to say, that where 
any law is passed by the Congress of the United States, 
which the State of Virginia, in its wise and independent 
judgment, j^ronounces to be in excess of the Constitutional 
power, it is its right and duty to interpose. How? By 
secession? No. By rebellion? No. But by ])rotecting 
and maintaining, within its territory, the authority, rights, 
and liberties pertaining to it. Now, these resolutions grew 
out of what? Certain laws, one called the "Alien" and the 
other the "Sedition" law, rendered necessary by the dis- 
turbances communicated by the French revolution to this 
countrv, and whicli necessarilv came within the doctrine of 
my friend, Mr. Larocque, that there is not the least right 
of secession when the laws are capable of being the subject of 
judicial investigation. Well, those laws were capable of 
being the subject of judicial investigation, and the resolutions 
did not claim the right of secession, but of nullification. 
My learned friend says that the doctrine of "secession" has 
no ground. 

But what was the fate of the "Virginia resolutions"? 
For Virginia did not pretend that she had all the wisdom, 
and virtue, and patriotism of the country within her borders. 
She sent these resolutions to every State in the Union, and 
desired the opinion of their legislatures and their governors 
on the subject. Kentucky passed similar resolutions; and 
Kentucky, you will notice, had just been made a State, in 
1793 — an off-shoot from Virginia; and, as the gentleman has 
told you, Mr. Madison wrote the resolutions of Virginia, and 



THE SAVANNAH PRIVATEERS 159 

Mr. Jefferson those of Kentucky. So that there was not any- 
great independent support, in either State, for the views, 
thus identical, and thus promulgated by these two Virginians. 
Their great patriotism, and wisdom, and intelligence, are a 
part of the inheritance we are all proud of. But, when the 
appeal was sent for concurrence to New York, South Caro- 
lina, Georgia, Massachusetts, and the New England States, 
what was the result? Why, Kentucky, in 1799, regrets 
that, of all the States, none, except Virginia, acquiesced in 
the doctrines; and the answers of every one of the States 
that made response are contained in the record which also 
contains the Virginia and Kentucky resolutions. And that 
doctrine there exploded, and exploded forever, until its 
recurrence in the shape of nullification, in South Carolina, 
as part of the doctrines of this Constitution. 

We had another pressure on the subject of local dissatis- 
faction, in 1812; and then the seat of discontent and heresy 
was New England. I do not contend, and never did con- 
tend, in any views I have taken of the history of affairs in 
this country, that the people of any portion of it have a 
right to set themselves in judgment as superiors over the 
people of any other portion. I never have had any doubt 
that, just as circumstances press on the interests of one com- 
munity or another, just so are they likely to carry their 
theoretical opinions on the questions of the power of their 
Government and of their own rights, and just so to express 
themselves. So long as they confine themselves to resolu- 
tions and politics, to the hustings, and to the elections, 
nobody cares very much what their political theories are. 
But my learned friend Mr. Brady has taken the greatest 
satisfaction in showing, that this notion of the co-ordinate 
authority of the States with the nation, found its expression 
and adoption, during the war of 1812, in some of the States 
of New England. Well, gentlemen, I believe that all sober 
and sensible people agree that, whether or not the New Eng- 



160 SPEECHES OF \YILLIAM MAX^^TLL EVARTS 

land States carried their heresies to the extent of justifying 
the nullification of a law, or the revocation of their assent to 
the Confederacy, and their withdrawal from tlie common 
Government, the doctrines there maintained were not suit- 
able for the strength and the harmony, for the unity and 
the permanency, of the American (iovernment. 1 believe 
that the condemnation of those i)rinciples that followed, 
from South Carolina, from Virginia, from New York, and 
from other parts of the country, and the resistance which a 
large, and important, and intelligent, and influential i)ortion 
of their own local community manifested, exterminated 
those heresies forever from the New England mind. 

Next, we come to 183^2, and then, under the special instruc- 
tion and authority of a great Southern statesman (Mr. Cal- 
houn) whose acuteness and power of reasoning have certainly 
been scarcely, if at all, surpassed by any of our great men, 
the State of South Carolina undertook, not to secede, but 
to nullify; and yet Mr. Larocque says, that this pet doctrine 
of Mr. Calhoun, — nullification, and nothing else, — is the 
absurtlest thing ever presented in this country; and we are 
fortunate, I suppose, in not having wrecked our Union upon 
that doctrine. 

Now we come, next, to the doctrine of secession. Nulli- 
fication, rejected in 1798 by all the States, except Virginia 
and Kentucky, and never revived by them, — nullification, 
rejected by the sober sense of the American People, — nulli- 
fication was put down by the strong will of Jackson, in 1832, 
— having no place to disturb the strength and hopes and 
future of this country. And what do we find is the proposi- 
tion now put forward, as matter of law, to your Honors, to 
relieve armed and open war from the penalties of treason, 
and from the condemnation of a lesser crime .^ What is it, as 
unfolded here by the learned advocate (Mr. Larocque), with 
all his acuteness, but so manifest an absurdity that its recog- 
nition by a lawyer, or an intelligent Jury seems almost impos- 



THE SAVANNAH PRIVATEERS 161 

sible? It is this: This Union has its power, its authority, 
its laws. It acts directly upon the individuals inside of 
every State, and they owe it allegiance as their Government. 
It is a Government which is limited, in the exercise of its 
power, to certain general and common objects, not inter- 
fering with the domestic affairs of any community. AVithin 
that same State there is a State Government, framed into 
this General Government, to be certainly a part of it in its 
territories, a part of it in its population, a part of it in every 
organization, and every department of its Government. 
The whole body of its administration of law, the Legislature 
and the Executive, are bound, by a particular oath, to sus- 
tain the Constitution of the United States. But, although 
it is true that the State Government has authority only 
where the United States Government has not, anti that the 
United States have authority only where the State has not; 
and although there is a written Constitution, which says what 
the line of separation is; and although there is a Supreme 
Court, which, when they come into collision, has authority to 
determine between them, and no case whatever, affecting 
the right or the conduct of any individual man, can be sub- 
tracted from its decision; yet, when there comes a difference 
between the State and the General Government, the State 
has the moral right, and political right, to insist upon its 
view, and to maintain it by force of arms, and the General 
Government has the right to insist upon its view, and to 
maintain it bj^ force of arms. x\nd then we have this poor 
predicament for every citizen of that unlucky State, — that 
he is bound by allegiance, and under the penalty of treason, 
to follow each and both of these powers. And as, should he 
follow the State, the United States, if it be treason, would 
hang him, and, if he should follow the United States, the 
State, if it be treason, would hang him, this peculiar and 
whimsical result is produced, — that when the United States 
undertake to hang him for treason his answer is — "Why, if I 

13 



162 SPEECHES OF WILLIAISI MAXWELL EVARTS 

had not done as I did, the State would have hanged me 
for treason, and, surely I cannot be compelled to be hanged 
one way or the other — so, I must be protected from hanging, 
as to both!" Well, that, I admit, is a sensible way to get 
out of the difficulty, for the man and for the argument, if you 
can do it. But it is a peculiar result, to start with two sover- 
eigns, each of which has a right over the citizen, and to end 
with the citizen's right to choose which he shall serve, and 
to throw it in the face of offended majesty and justice — 
"Why, your statute of treason is repealed as against me, 
because the State, of which I am a subject, has counseled a 
particular course of conduct!" 

Now, gentlemen, my learned friend cjualifies even this 
theory — which probably must fall within the condemnation 
of the perhaps somewhat harsh and rough suggestion of 
Mr. Justice Grier, of a ''political platitude"— by the sug- 
gestion that it only applies to questions where the United 
States cannot settle the controversy. And when my learned 
friend is looking around for an instance or an occasion that is 
likely to arise in human affairs, and in this nation, and in 
this time of ours, he is obliged to resort to the most extraord- 
inary and extravagant proposition by way of illustration, 
and one that has, in itself, so many of the ingredients of 
remoteness and impossibility, that you can hardly think a 
Government deficient in not having provided for it. He 
says, first — suppose we have a President, who is a Massa- 
chusetts man. Well, that is not very likely in the course 
of politics at present. And then, suppose that he is a bad 
man, — which, probably, my learned friends would think 
not as unlikely as I should wish it to be. And, then, sup- 
pose he should undertake to build up Boston, in its commerce, 
at the expense of New York; and should put a blockading 
squadron outside of New York, by mere force of caprice 
and tyranny, without any law, and without any provision 
for the payment of the men of the Navy, or any commission 



THE SAVANNAH PRIVATEERS 163 

or authority to any of them under which they could find 
they were protected for what they should do, in actually and 
effectually blockading our port. My learned friend acknowl- 
edges that this is a pretty violent sort of suggestion, and 
that no man in his senses would pretend to do such a thing, 
however bad he was, unless he could find a reasonable sort 
of pretext for it. Therefore he would, wisely and craftily, 
pretend that he had private advices that England was going 
to bombard New York. Now that is the practical case cre- 
ated by my learned friend's ingenuity and reflection, as a con- 
tingency in which this contest by war between New York 
and the United States of America would be the only prac- 
tical and sensible mode of protecting our commerce, and 
keeping you and me in the enjojTiient of our rights as citi- 
zens of the State of New York. Well, to begin wath, if we 
had a fleet off New York harbor, what is there that would 
require vessels to go to Boston instead of to Philadelphia, 
Baltimore, and other places that are open? In the second 
place, how long could we be at war, and how great an 
army could we raise in New York, to put in the field 
against the Federal Government, before this pretence of 
private advices that England was going to bombard New 
York, would pass away, and the naked deformity of this 
bad Massachusetts President be exposed? Why, gentle- 
men, it is too true to need suggestion, that the wisdom which 
made this a Government over all individual citizens, and 
made every case of right and interest that touches the pocket 
and person of any man in it a question of judicial settlement, 
made it a Government which requires for the solution of 
none of the controversies within it, a resort to the last appeal 
— to battle, and the right of kings. 

SECOND day's argument 

Gentlemen of the Jury: In resuming the course of my 
remarks, already necessarily drawn to a very considerable 
length, I must recall to your attention the point that I bad 



164 SPEECHES OF \MLLIAJM MAXWELL EVARTS 

reached when the Court adjourned. I was speaking of this 
right of secession, as inconsistent with the frame, the purpose, 
and the occasion upon which the General Government was 
formed; and of the illustration invented by my learned 
friend, and so improbable in its circumstances, of the posi- 
tion of the United States and one of the States of the Union, 
that could bring into play and justify this resort to armed 
opposition. I had said what I had to say, for the most part, 
as to the absurdity and improbability of the case supposed, 
and the inadequacy, the worthlessness, the chimerical 
nature of the remedy proposed. Now, you will observe 
that, in the case supposed, the blockade of New York was to 
be without law, without authority, upon the mere capricious 
pretence of the President — a pretence so absurd that it 
could not stand the inspection of the people for a moment. 
^Yhat is the use of a pretence unless it is a cover for the act 
which it is intended to cloak? In such a case, the only 
proper, peaceful course would be to raise the question, which 
might be raised judicially, by attem])ting, in a peaceful 
manner, to pass the blockade, and throw the conseciuences 
upon the subordinate officers who attempted to execute the 
mere usurpation of the President, and, following the declara- 
tion of the Divine writings, that "wisdom is better than 
weapons of war," wait until the question could be disposed 
of under the Constitution of the United States. For you 
will observe that, in the case supposed, there is no threat to 
the integrity, no threat to the authority, no threat to the 
existence of the State Government, or its Constitution; but 
an impeding of the trade or interests of the people of this 
city, and of the residents of all parts of the country inter- 
ested in the commerce of New York. That port is not the 
port of New York alone. It is the port of the United States 
of America, and all the communities in the Western country, 
who derive their supplies of foreign commodities through 
our internal navigation, when commerce has introduced 



THE SAVANNAH PRWATEERS 165 

them into this port, are just as much affected — just as much 
injured and oppressed — by this blockade of our great port 
and emporium, as are the people of the State of New York. 
So that, so far from its being a collision between the Gov- 
ernment of the State of New York and the Government of 
the United States, it is a violent oppression, by usurpation 
— exposing to the highest penalties of the law the magistrate 
who has attempted it — exercised upon the people of the 
United States wherever residing, in the far West, in the 
surrounding States, in the whole country, who are inter- 
ested in the maintenance of the commerce of this port. I 
need not say that the action of our institutions provides a 
ready solution for this difficulty. Two or three weeks must 
bring to the notice of every one the frivolity of the pretence 
of the Executive, that there was a threat of armed attack 
by a foreign nation. But if two or three weeks should bring 
the evidence that this was not an idle fear, and that, by 
information conveyed to the Government, this threat was 
substantial, and was followed by its attempted execution, — 
why, then, how absurd the proposition that, under the 
opinion of the State of New York that this was but an idle 
pretext, for purposes of oppression, the State should fly into 
arms against the power exercised to protect the city from 
foreign attack! The working of our affairs, which brings 
around the session of Congress at a time fixed by law — not 
at all determinable by the will of the President — exposes 
him to the grand inquest of the people, which sits upon his 
crime, and, by his presentation and trial before the great 
Court of Impeachment, in the course of one week — nay, in 
scarcely more than one day after its coming into session — 
both stamps this act as an usurpation, and dispossesses the 
magistrate who has violated the Constitution. And yet, 
rather than wait for this assertion of the power of the Con- 
stitution peacefully to depose the usurping magistrate, my 
friend must resort to this violent intervention of armed 



166 SPEECHES OF ^VILLIAM MAX^^^LL EVARTS 

collision, that would keep us — in theory, at least — constantly 
maintaining our rights by the mere method of force, and 
would make of this Government — at the same time that 
they eulogize the founders of it, as the best and wisest of 
men — but an organization of armed hostilities, and its 
framers only the architects of an ever-impending ruin! 

My learned friend, Mr. Brady, has asked my attention 
to the solution of a case wherein he thinks the State Govern- 
ment might be called upon to protect the rights of its citi- 
zens against the o])eration of an Act of Congress, by pro- 
posing this question: Suppose Congress should require that 
all the expenses of this great war, as we call it, should be 
paid by the State of New York, — what should we do in that 
case? Nothing but hostilities are a solution for that case, it 
is suggested. Now, I would freely say to my learned friend, 
Mr. Brady, that if the General Government, by its law, 
should impose the whole taxation of the war upon the State 
of New York, I should advise the State of New York, or any 
citizen in it, not to pay the taxes. That is the end of the 
matter. And I would like to know if there is any warlike 
process by which the General Government of the United 
States exacts its tribute of taxation, that could impose the 
whole amount on New York.^ As the process of taxation 
goes on, it is distributed through different channels, and 
presents itself as an actual and effective process, from the 
tax-gatherer to the tax-payer: "Give me so many dollars." 
And the tax-payer says: "There is no law for it, and I will not 
do it." Then the process of collection raises for considera- 
tion this inquiry — whether the tax is according to the law, 
and according to the constitutional law of the United States 
of America. And this tribunal, formed to decide such ques- 
tions — formed to settle principles in single cases, that shall 
protect against hostilities these great communities — dis- 
poses of the question. If the law is constitutional, then the 
tax is to be paid — if unconstitutional, then the tax is not 
collectable; and the question is settled. But my learned 



THE SAVANNAH PRIVATEERS 167 

friends, in their suggestions of what is a possible state of 
law that may arise in this country, forget the great distinc- 
tion between our situation under the Federal Government 
and our situation as Colonies under the authority of the 
King and Parliament of England. It is the distinction be- 
tween not being represented and being represented. 

Why, my learned friends, in order to get the basis of a 
possible suggestion of contrariety of duty and of interest be- 
tween the Government of the United States and the people 
in these States, must overlook, and do overlook, the fact 
that there is not a functionary in the Federal Government, 
from the President down to the Houses of Congress, that 
does not derive his authority from the people, not of one 
State, not of any number of States, but of all the States. 
And thus standing, they are guardians and custodians, in 
their own interests — in their own knowledge of the interests 
of their own people — in their own knowledge that their place 
in the protection, power, and authority of the Government 
of the United States, proceeds by the favor and the approval 
of the local community in which they reside. So far, there- 
fore, from anything in the arrangement or the working of 
these political systems being such as to make the Representa- 
tives or Senators that compose Congress the masters or the 
enemies of the local population of the States from which 
they respectively come, they come there under the authority 
of the local population which they represent, dependent 
upon it for their place and continuance, and not on the 
Federal Government. 

Away, then, with the notion, so foreign to our actual, con- 
stituted Government, that this Government of the United 
States of America is a Government that is extended over 
these States, with an origin, a power, a support independent 
of them, and that it contains in itself an arrangement, a 
principle, a composition that can by possibility excite or 
sustain these hostihties! Why, every act of Congress must 



168 SPEECHES OF ^VILLL\M MAXWELL EVARTS 

govern the whole Union. Every tax must, to be constitu- 
tional, be extended over the whole Union, and according to 
a fixed ratio of distribution between the States, established 
by the Constitution itself. Now, therefore, when any par- 
ticular interest, any particular occasion, any supposed 
necessity, any political motive, suggests a departure, on the 
part of the General Government, from a necessary adher- 
ence to this principle of the Constitution, you will perceive 
that not only are the Representatives and Senators who 
come from the State against which this exercise of power is 
attempted, interested to oppose, in their places in Congress, 
the violation of the Constitution, but the Representatives 
and the Senators from every other State, in support of the 
rights of the local commvmities in which they reside, have 
the same interest and the same duty, and may be practically 
relied upon to exercise the same right, and authority, and 
opposition, in protection of their communities, against an 
application of the same principle, or an obedience to the same 
usurpation, on subsequent occasions, in reference to other 
questions that may arise. Therefore, my learned friends, 
when they are talking toyou, theoretically or practically, about 
the opposition that may arise between co-ordinate and inde- 
pendent sovereignties, and would make the glorious Constitu- 
tion of this Federal Government an instance of misshapen, 
and disjointed, and impractical inconsistencies, forget that 
the great basis of both of them rests in the people, and in the 
same people — equally interested, equally powerful, to 
restrain and to continue the movements of each, within the 
separate, constitutional rights of each. Now, unquestion- 
ably, in vast communities, with great interests, diverse and 
various, opinions may vary, and honest sentiments may 
produce the enactment of laws of Congress, which equally 
honest sentiments, on the part of local communities, ex- 
pressed through the action of State legislation, may regard 
as inconsistent with the Government and the Constitution 



THE SAVANNAH PRWATEERS 169 

of the United States, and with the rights of the States. But, 
for these purposes, for these occasions, an ample and com- 
plete theoretical and practical protection of the rights of all 
is found, in this absolute identity of the interests of the 
people and of their authority in both the form and the struc- 
ture of their complex Government, and in the means pro- 
vided by the Constitution itself for testing every question 
that touches the right, the interest, the liberty, the property, 
the freedom of any citizen, in all and any of these commun- 
ities, before the Supreme Court of the United States. Let 
us not be drawn into any of these shadowy propositions, that 
the whole people may be oppressed, and not a single indi- 
vidual in it be deprived of any personal right. Whenever 
the liberty of the citizen is abridged in respect to any per- 
sonal right, the counsel concede that the Courts are open to 
him; and that is the theory, the wisdom, and the practical 
success of the American Constitution. 

Now, gentlemen of the Jury, but one word more on this 
speculative right of secession. It is founded, if at all, upon 
the theory, that the States, having been, anterior to the 
formation of the Constitution, independent sovereignties, 
are, themselves, the creators, and that the Constitution is 
the creature proceeding from their power. I have said all 
I have to say about either the fact, or the result of the fact, 
if it be one, of the existence of these antecedent, complete 
national sovereignties on the part of any of the original 
States. 

But, will my learned friends tell me how this theory of 
theirs, in respect to the original thirteen States, has any 
application to the States, now quite outnumbering the 
original thirteen, which have, since the Constitution was 
formed, entered into the Government of this our territory, 
this our people? Out of thirty-four States, eleven have 
derived their existence, their permission to exist, their terri- 
tory, their power to make a Constitution, from the General 



170 SPEECHES OF WTLLIA31 MAX\ATLL EVARTS 

Government itself, out of whose territory — either acquired 
originally by the wealth or conquest of the Federal Govern- 
ment, or derived directly or indirectly through cession or 
partition or separation of the original Colonies — they have 
sprung into existence. Of these eleven allied and confed- 
erate States, but four came from the stock of the original 
thirteen, and seven derived their whole power and authority 
from the permission of the Constitution of the United States, 
and have sprung into existence, with the breath of their 
lives breathed into them through the Federal Government. 
When the State of Louisiana talks of its right to secede by 
reason of its sovereignty, by reason of its being one of the 
creators of the Federal Government, and of the Federal 
Constitution — one of the actors in the principles of the Amer- 
ican Revolution, and in the conquest of our liberties from 
the English power — we may well lift our hands in surprise 
at the arrogance of such a suggestion. \Vhy,'^what was Louis- 
iana, in all her territory, at the thne of the great transaction 
of the Federal Revolution, and for a long time afterwards, 
but a province of Sjiain, first, and afterwards of France? 
How did her territory — the land upon which her population 
and her property rest — come to be a part of our territory, 
and to give support to a State government, and to State 
interests? Why, by its acquisition, under the wise policy of 
Mr. Jefferson, early in this century, upon the opportunity 
offered, by the necessity or policy of the Emperor Napoleon, 
for its purchase, by money, as you would buy a ship, or a 
strip of land to build a fort on. 

Coming thus to the United States, by its purchase, how 
did Louisiana come to be set apart, carved out of the im- 
mense territory comprehended under the name of Louisiana, 
but by lines of division and concession of power, proceeding 
from the Government of the United States? And why did 
we purchase it? We purchased it preliminarily, not so 
much to seize the opportunity for excluding from a foothold 



THE SAVANNAH PRIVATEERS 171 

on this Continent a great foreign Power, which, although its 
territory here was waste and uninhabited, had the legal right 
to fill it, and might in the course of time, fill it with a popu- 
lation hostile in interests to our own, — not so much for this 
remote contingency, as to meet the actual pressing necessity, 
on the part of the population that was beginning to fill up 
the left or eastern bank of the Mississippi, from its source to 
near its mouth, that they should have the mouth of the 
Mississippi also within their territory, governed by the same 
laws and under the same Government. And now, forsooth, 
the money and the policy of the United States having ac- 
quired this territory, and conceded the political rights con- 
tained in the Constitution of Louisiana, we are to justify 
the secession of the territory of Louisiana, carrying the 
mouth of the Mississippi with her, on the theory that she 
was one of the original sovereignties, and one of the creators 
of the Constitution of the United States! 

Well, gentlemen, how are our learned friends to escape 
from this dilemma? Are they to say that our constituted 
Government, complex, composed of State and of Federal 
power, has two sets of State and Federal relations within it, 
to wit, that which existed between the General Government 
and the thirteen sovereign, original States, and that which 
exists between the Federal Government and the other 
twenty-one States of the Union? Is it to follow, from this 
severance, that these original Colonies, declaring their inde- 
pendence — South Carolina, North Carolina, Virginia and 
Georgia — are to draw back to themselves the portions of 
their original territory that have since, under the authority 
of the Constitution, been formed into separate communities? 
Our Constitution was made by and between the States, and 
the people of the States — not for themselves alone — not 
limited to existing territory, and arranged State and Pro- 
vincial Governments — but made as a Government, and 
made with principles in respect to Government that should 



172 SPEECHES OF WILLIAM AL\X\VELL EVARTS 

admit of its extension by purchase, by conquest, by all the 
means that could l)ring accretion to a people in territory and 
in strength, and that should be, in its jHincijiles, a fonn of 
Government applicable to and sufficient for the old and the 
new States, and the old and the new ])opulation. I need 
not refer to the later instances, where, by ])urchase, we 
acquired Florida, also one of the seceded States, and where, 
by our annies, we gained the western coast of the Pacific. 
Are these the relations into which the power, and blood, and 
treasure of this Government bring it, in respect to the new 
comnumities and the new States which, under its protection, 
and from its conceded power, have derived their very exist- 
ence? 

\Vhy, gentlemen, our Governuient is said, by those who 
complain of it, or who expose what they regard as its difficul- 
ties, to have one element of weakness in it, to wit, the possi- 
bility of discord between the State and Federal authorities. 
But, if you adopt the principle, that there is one set of rules, 
one set of rights, between the Federal Government and the 
original States that formed the Union, and another set of 
rules between the Federal Government and the new States, 
I would like to know what becomes of the provision of the 
Constitution, that the new States may be admitted on the 
same footing with the old? What becomes of the harmony 
and accord among the local Governments of this great 
nation, which we call State Governments, if there be this 
superiority, in every political sense, on the part of the old 
States, and this absolute inferiority and subjection on the 
part of the new? 

And now, gentlemen, having done with this doctrine of 
secession, as utterly inconsistent with the theory of our 
Government, and utterly unimportant, as a practical right, 
for any supposable or even hnaginable case that may be 
suggested, I come to consider the question of the right of 
revolution. I have shown you upon what principles, and 



THE SAVANNAH PRWATEERS 173 

upon what substantial question, between being subjects as 
slaves, or being participants in the British Government, our 
Colonies attempted and achieved their independence. As 
I have said to you, a very brief experience showed that they 
needed, to meet the exigencies of their situation, the estab- 
lishment of a Government that should be in accordance with 
the wishes and spirit of the people, in regard of freedom, and 
yet should be of such strength, and such unity, as would 
admit of prosperity being enjoyed under it, and of its name 
and power being established among the nations of the earth. 
Now, without going into the theories of Government, and 
of the rights of the people, and of the rights of the rulers, to 
any great extent, we all know that there has been every 
variety of experiment tried, in the course of human affairs, 
between the great extreme alluded to by my learned friend 
(Mr. Brady) of the slavery of Egyptians to their king — the 
extreme instance of an entire population scarcely lifted above 
the brutes in their absolute subjection to the tyranny of a 
ruler, so that the life, and the soul, and the sweat, and the 
blood of a whole generation of men are consumed in the 
task of building a mausoleum as the grave of a king — and the 
later efforts of our race, culminating in the happy success 
of our own form of Government, to establish, on foundations 
where liberty and law find equal support, the principle of 
Government, that Government is by, and for, and from all 
the people— that the rulers, instead of being their masters 
and their owners, are their agents and their servants — and 
that the greatest good of the greatest number is the plain, 
practical and equal rule which, by gift from our Creator, 
we enjoy. 

Now this, you will observe, is a question which readily 
receives our acceptance. But the great problem in reference 
to the freedom of a people, in the establishment of their 
Government, presents itself in this wise: The people, in 
order to maintain their freedom, must be masters of their 



174 SPEECHES OF ^VILLIAM MAXWELL EVARTS 

Government, so that the Government may not be too strong, 
in its arrangement of power, to overmaster the people; but 
yet, the Government must be strong enough to maintain and 
protect the independence of the nation against the aggres- 
sions, the usurpations, and the oppressions of foreign na- 
tions. Here you have a difficulty raised at once. You 
expose either the freedom of the nation, by making the Gov- 
ernment too strong for the preservation of individual inde- 
pendence, or you expose its existence, by making it too weak 
to maintain itself against the passions, interests and power 
of neighboring nations. If you have a large nation — count- 
ing its poinilation by many millions, and the circumference 
of its territory by thousands of miles— how can you arrange 
the strength of Government, so that it shall not, in the 
interests of human ])assions, grow too strong for the liber- 
ties of the people? And if, abandoning in despair that 
effort and that hope, you circumscribe the limits of your 
territory, and reduce your population within a narrow range, 
how can you have a Government and a nation strong enough 
to maintain itself in the contests of the great family of 
nations, impelled and urged by interests and passions? 

Here is the first peril, which has never been successfully 
met and disposed of in any of the forms of Government that 
have been known in the history of mankind, until, at least, 
our solution of it was attempted, and unless it has suc- 
ceeded and can maintain itself. But, again, this business 
of self-government by a people has but one practical and 
sensible spirit and object. The object of free Government is, 
that the people, as individuals, may, with security, pursue 
their own happiness. We do not tolerate the theory that all 
the people constituting the nation are absorbed into the 
national growth and life. The reason why we want a free 
Government is, that w^e may be happy under it, and pursue 
our own activities according to our nature and our faculties. 
But, you will see, at once, that it is of the essence of being 



THE SAVANNAH PRIVATEERS 175 

able to pursue our own interests under the Government 
under which we live, that we can do so according to our 
own notions of what thev are, or the notions of those who 
are intelligently informed of, participate in, and sympathize 
with, those interests. Therefore, it seems necessarv that 
all of the every-day rights of property, of social arrange- 
ments, of marriage, of contracts — everything that makes 
up the life of a social community — shall be under the control, 
not of a remote or distant authority, but of one that is 
limited to, and derives its ideas and principles from, a local 
community. 

Now, how can this be in a large nation — in a nation of 
thirtv millions, distributed over a zone of the earth? How 
are we to get along in New York, and how are others to get 
along in South Carolina, and others in New England, in 
the every-day arrangements that proceed from Govern- 
ment, and affect the prosperity, the freedom, the indepen- 
dence, the satisfaction of the communitv wath the condition 
in which it lives? How can we get along, if all these minute 
and every-day arrangements are to proceed from a Govern- 
ment which has to deal with the diverse opinions, the di- 
verse sentiments, the diverse interests, of so extensive a 
nation? But if, fleeing from this peril, you say that you 
may reduce your nation, you fall into another diflBculty. 
The advanced civilization of the present day requires, for 
our commercial activity, for our enjoyment of the comforts 
and luxuries of life, that the whole globe shall be ransacked, 
and that the power of the nation which we recognize as our 
superior shall be able to protect our citizens in their enter- 
prises, in their activities, in their objects, all over the world. 
How can a little nation, made up of Massachusetts, or made 
up of South Carolina, have a flag and a power which can 
protect its commerce in the East Indies and in the Southern 
Ocean? Again — we find that nations, unless they are 
separated by wide barriers, necessarily, in the course of 



176 SPEECHES OF ^VILLIAM MAX>VELL EVARTS 

human affairs, come into collision; and, as I have shown to 
you, the only arbitrament for their settlement is war. But 
war is a scourge — an unmitigated scourge — so long as it 
lasts, and in itself considered. But for objects which make 
it meritorious and useful, it is a scourge never to be tolerated. 
It puts in abeyance all individual rights, interests, and 
schemes, until the great controversy is settled. 

If, then, we are a small nation, surrounded on all sides by 
other nations, with no natural barriers, with competing 
interests, with occasions of strife and collision on all sides, 
how can we escape war, as a necessary result of that miser- 
able situation? But war strengthens the power of Govern- 
ment, weakens the power of the individual, and establishes 
maxims and creates forces, that go to increase the weight 
and the power of Government, and to weaken the rights of 
the people. Then, we see that, to escape war, we must 
either establish a great nation, which occupies an extent of 
territory, and has a fund of power sufficient to protect itself 
against border strifes, and against the ambition, the envy, the 
hatred of neighbors; or else one which, being small, is exposed 
to war from abroad to subjugate it, or to the greater peril to 
its own liberties, of war made by its own Government, thus 
establishing principles and introducing interests which are 
inconsistent with liberty. 

I have thus ventured, gentlemen, to lay before you some 
of these general principles, because, in the course of the 
arguments of my learned friends, as well as in many of the 
discussions before the public mind, it seems to be considered 
that the ties, the affections and the interests, which oblige 
us to the maintenance of this Government of ours, find their 
support and proper strength and nourishment only in the sen- 
timents of patriotism and duty, because it happens to be our 
own Government; and that, when the considerations of force 
or of feeling which bring a people to submit to a surrender of 
their Government, or to a successful conquest of a part of 



THE SAVANNAH PRIVATEERS 177 

their territory, or to a wresting of a part of their people from 
the control of the Government, shall be brought to bear upon 
us, we shall be, in our loss and our surrender, only suffering 
what other nations have been called upon to lose and to sur- 
render and that it will be but a change in the actual condition 
of the country and its territory. But you will perceive that, 
by the superior fortune which attended our introduction into 
the family of nations, and bj' the great wisdom, forecast, 
and courage of our ancestors, we avoided, at the outset, all 
the difficulties between a large territory and a numerous 
population on the one hand, and a small territory and a re- 
duced population on the other hand, and all those opposing 
dangers of the Government being either too weak to protect 
the nation, or too strong, and thus oppressive of the people, 
by a distribution of powers and authorities, novel in the af- 
fairs of men, dependent on experiment, and to receive its 
final fate as the result of that experiment. We went on this 
view — that these feeble Colonies had not, each in itself, the 
life and strength of a nation; and, yet, these feeble Colonies, 
and their poor and sparse population, were nourished on a 
love of liberty and self-government. These sentiments 
had carried them through a successful war against one of the 
great powers of the earth. They were not to surrender that 
for which they had been fighting to any scheme, to any 
theory of a great, consolidated nation, the Government of 
which should subdue the people and re-introduce the old 
fashion in human affairs — that the people were made for 
the rulers, and not the rulers by and for the people. They 
undertook to meet, they did meet, this difficult dilemma in 
the constitution of Government, by separating the great 
fund of power, and reposing it in two distinct organizations. 
They reserved to the local communities the control of their 
domestic affairs, and attributed the maintenance and pres- 
ervation of them to the State Governments. They under- 
took to collect and deposit, under the form of a written Con- 

14 



178 SPEECHES OF WILLIAM MAX^^TLL EVARTS 

stitution, with the general Government, all those larger and 
common interests which enter into the conception and prac- 
tical establishment of a distinct nation among the nations of 
the earth, and determined that they would have a central 
power which should be adequate, by drawing its resources 
from the patriotism, from the duty, from the wealth, from 
the numbers, of a great nation, to represent them in peace and 
in war, — a nation that could protect the interests, encourage 
the activities, and maintain the development of its peoi)le, 
in spite of the opposing interests or the envious or hostile 
attacks of any nation. They determined that this great 
Government, thus furnished with this range of authority 
and this extent of power, should not have anything to do 
with the every-day institutions, operations and social ar- 
rangements of the community into which the vast popula- 
tion and territory of the nation were distributed. They 
determined that the people of Massachusetts, the people of 
New York, and the people of South Carolina, each of them, 
should have their own laws about agriculture, about inter- 
nal trade, about marriage, about aj^j^renticeship, about 
slavery, about religion, about schools, about all the every- 
day pulsations of individual life and happiness, controlled 
by communities that moved with the same pulsations, 
obeyed the same instincts, and were animated by the same 
purposes. And, as this latter class of authority contains in 
itself the principal means of oppression by a Government, 
and is the principal point where oppression is to be feared by 
a people, they had thus robbed the new system of all the 
dangers which attend the too extensive powers of a Gov- 
ernment. They divided the fund of power, to prevent a 
great concentration and a great consolidation of the army 
of magistrates and officers of the law and of the Government 
which would have been combined by a united and consoli- 
dated authority, having jurisdiction of all the purposes of 
Government, of all the interests of citizens, and of the entire 



THE SAVANNAH PRIVATEERS 179 

population and entire territory in these respects. They 
thus made a Government, complex in its arrangements, 
which met those opposing difficulties, inherent in human 
affairs, that make the distinction between free Governments 
and oppressive Governments. They preserved the people 
in their enjoyment and control of all the local matters enter- 
ing into their every-day life, and yet gave them an establish- 
ment, springing from the same interests and controlled by 
the same people, which has sustained and protected us in our 
relations to the family of nations on the high seas and in the 
remote corners of the world. 

Now, this is the scheme, and this is the purpose, with 
which this Government was formed; and you will observe 
that there is contained in it this separation, and this dis- 
tribution. And our learned friends, who have argued before 
you respecting this theory, and this arrangement and prac- 
tice of the power of a Government, as inconsistent with the 
interests and the freedom of the people, have substantially 
said to you that it was a whimsical contrivance, that it was 
an impossible arrangement of inconsistent principles, and 
that we must go back to a simple Government composed of 
one of the States, or of a similar arrangement of territory 
and people, which would make each of us a weak and con- 
temptible power in the family of nations — or we must go 
back to the old consolidation of power, such as is represented 
by the frame of France or England in its Government, or, 
more distinctly, more absolutely, and more likely to be the 
case, for so vast a territory and so extensive a population as 
ours, to the simple notion of Russian Autocracy. 

That, then, being the object, and that the character, of 
our institutions, and this right of secession not being pro- 
vided for, or imagined, or tolerated in the scheme, let us 
look at the right of revolution, as justifying an attempt to 
overthrow the Government; and let us look at the occasions 
of revolution, which are pretended here, as giving a support, 



180 SPEECHES OF WILLIAM MAXWELL EVARTS 

before the world, in the forum of conscience, and in the 
jiid^nnent of mankind, for the exercise of that riglit. 

And first, let me ask you whether, in all the citations from 
the great men of the Revolution, and in the later stages of 
our history, any opinion has been cited which has condenmed 
this scheme as unsuitable and insufficient for the freedom 
and happiness of the peoi)le, if it can be successful? I 
think not. The whole history of the country is full of rec- 
ords of the approval, of the support, of the admiration, of 
the reverent language which our jieople at large, and the 
great leaders of public opinion— the great statesmen of the 
country — have spoken of this system of Government. Let 
me ask your attention to but two encomiums upon it, as 
represented by that central idea of a great nation, and yet a 
divided and local administration of popular interests — to 
wit, one in the first stage of its adoption, before its ratifica- 
tion by the people was comi^lete; and the other, a speech 
made at the very eve of, if not in the very smoke of, this 
hostile dissolution of it. 

Mr. Pinckney, of South Carolina, who had been one of the 
delegates from that State in the National Convention, and 
had co-operated with the Northern statesmen, and with the 
great men of Virginia, in forming the Government as it was, 
in urging on the Convention of South Carolina the adoption 
of the Constitution, and its ratification, said: 

"To the Union we will look up as the temple of our free- 
dom, — a temple founded in the alTections and supported by 
the virtue of the people. Here we will pour out our grati- 
tude to the Author of all good, for suffering us to partici- 
pate in the rights of a people who govern themselves. Is 
there, at this moment, a nation on the earth which enjoys 
this right, where the true principles of representation are 
understood and practised, and where all authority flows 
from, and returns at stated periods to, the people? I an- 
swer, there is not. Can a Government be said to be free 



THE SAVANNAH PRIVATEERS 181 

where those do not exist? It cannot. On what depends the 
enjoyment of those rare, inestimable rights? On the firmness 
and on the power of the Union to protect and defend them." 

Had we anything from that great patriot and statesman of 
this right of secession, or independence of a State, as an im- 
portant or a useful element in securing these rare, these un- 
heard of, these inestimable privileges of Government, which 
the Author of all good had suffered the people of South 
Carolina to participate in? No — they depended "on the 
firmness and on the power of the Union to protect and 
defend them." Mr. Pinckney goes on to say: "To the 
philosophic mind, how new and awful an instance do the 
United States at present exhibit to the people of the world ! 
They exhibit, sir, the first instance of a people who, being 
thus dissatisfied with their Government, unattacked by a 
foreign force and undisturbed by domestic uneasiness, coolly 
and deliberately resort to the virtue and good sense of the 
country for a correction of their public errors." 

That is, for the abandonment of the weakness and the 
danger of the imperfect Confederation, and the adoption of 
the constitutional and formal establishment of Federal 
power. Mr. Pinckney goes on to say: 

"It must be obvious that, without a superintending Gov- 
ernment, it is impossible the liberties of this country can 
long be secure. Single and unconnected, how weak and 
contemptible are the largest of our States! how unable to 
protect themselves from external or domestic insult! how 
incompetent, to national purposes, would even the present 
Union be! how liable to intestine war and confusion! how 
little able to secure the blessings of peace! Let us, there- 
fore, be careful in strengthening the Union. Let us remember 
we are bounded by vigilant and attentive neighbors" — 
(and now Europe is within ten days, and they are near 
neighbors) — "who view with a jealous eye our rights to 
empire." 



182 SPEECHES OF ^\'ILLIAM MAXWELL EVARTS 

Pursuing my design of limiting my citations of the opin- 
ions of public men to those who have received honor from, 
and conferred honor on, that portion of our country and 
those of our countrymen now engaged in this strife with the 
General Government, let me ask your attention to a speech 
delivered by Mr. Stei)hens, now the Vice-President of the 
so-called Confederate States, on tlie very eve of, and pro- 
testing against, this effort to dissolve the Union. I read 
from page '■2*20 and subsecjuent pages of the documents that 
have been the subject of reference heretofore: 

"The first question tliat i)resents itself" — (says Mr. Ste- 
phens to the assembled Legislature of Georgia, of which he 
was not a member, but which, as an eminent and leading pub- 
lic man, he had been invited to address) — *' is, shall the people 
of the South secede from the Union in conse(}uence of the 
election of Mr. Lincoln to the Presidency of the United 
States? My countrymen, / tell you frankly, candidly, and 
earnestly, that I do not think that they ought. In my judgment, 
the election of no man, constitutionally elected to that high 
ofhce, is sufficient cause for any State to separate from the 
Union. It ought to stand by and aid still in maintaining 
the Constitution of the country. To make a point of re- 
sistance to the Government — to withdraw from it because 
a man has been constitutionally elected — puts us in the 
wrong. We are pledged to maintain the Constitution. 

Many of us have sworn to support it. 

***** 

"But it is said Mr. Lincoln's policy and principles are 
against the Constitution, and that if he carries them out it 
will be destructive of our rights. Let us not anticipate 
a threatened evil. If he violates the Constitution, then 
will come our time to act. Do not let us break it because, 
forsooth, he may. If he does, that is the time for us to 
strike. . . . My countrymen, I am not of those who 
believe this Union has been a curse up to this time. True 



THE SAVANNAH PRWATEERS 183 

men — men of integrity — entertain different views from me 
on this subject. I do not question their right to do so; I 
would not impugn their motives in so doing. Nor will I 
undertake to sav that this Government of our fathers is 
perfect. There is nothing perfect in this world, of a human 
origin, — nothing connected with human nature, from man 
himself to any of his works. You may select the wisest and 
best men for your Judges, and yet how many defects are 
there in the administration of justice? You may select the 
wisest and best men for your legislators, and yet how many 
defects are apparent in your laws.'^ And it is so in our Gov- 
ernment. 

"But that this Government of our fathers, with all its 
defects, comes nearer the objects of all good Governments 
than any on the face of the earth, is my settled conviction. 
Contrast it now with any on the face of the earth. " ("Eng- 
land," said Mr. Toombs.) "England, my friend says. 
Well, that is the next best, I grant; but I think we have 
improved upon England. Statesmen tried their apprentice 
hand on the Government of England, and then ours was 
made. Ours sprang from that, avoiding many of its de- 
fects, taking most of the good, and leaving out many of its 
errors, and, from the whole, constructing and building up 
this model Republic — the best which the history of the 
world gives any account of. 

"Compare, my friends, this Government with that of 
Spain, Mexico, the South American Republics, Germany, 
Ireland — are there any sons of that down-trodden nation 
here to-night? — Prussia, or, if you travel further East, to 
Turkey or China. Where will you go, following the sun in 
his circuit round our globe, to find a Government that better 
protects the liberties of its people, and secures to them the 
blessings we enjoy? I think that one of the evils that 
beset us is a surfeit of liberty, an exuberance of the priceless 
blessings for which we are ungrateful. 



184 SPEECHES OF WTLLIAM ^IAX^YELL EVARTS 

"When I look around and see our prosperity in every- 
thing — agriculture, commerce, art, science, and every de- 
partment of education, ])hysical and mental, as well as moral 
advancement, and our colleges — I think, in the face of such 
an exhibition, if we can, without the loss of power, or any 
essential right or interest, remain in the Union, it is our 
duty to ourselves and to posterity to — let us not too readily 
yield to this temptation — do so. Our first parents, the great 
progenitors of the human race, were not without a like 
temptation when in the Garden of Eden. Thoy were 
led to believe that their condition wouhl be bettered — that 
their eyes would be opened — and that they would become 
as gods. They in an evil hour yielded. Instead of becoming 
gods, they only saw their own nakedness. 

"I look upon this country, with our institutions, as the Eden 
of the world, and the paradise of the Universe. It may be 
that out of it we may become greater and more prosperous, 
but I am candid and sincere in telling you that I fear if we 
rashly evince passion, and, without sufficient cause, shall take 
that step, that instead of becoming greater or more peaceful, 
prosperous and happy — instead of becoming gods — we will 
become demons, and, at no distant day, commence cutting 
one another's throats." 

Still speaking of our Government, he says: 

"Thus far, it is a noble example, worthy of imitation. 
The gentleman (^Ir. Cobb) the other night said it had proven 
a failure. A failure in what.^ In growth.' Look at our 
expanse in national power. Look at our population and 
increase in all that makes a people great. A failure? Why, 
we are the admiration of the civilized world, and present 
the brightest hopes of mankind. 

"Some of our public men have failed in their aspirations; 
that is true, and from that comes a great part of our troubles. 

"No, there is no failure of this Government yet. W^e 
have made great advancement under the Constitution, and 



THE SAVANNAH PRIVATEERS 185 

I cannot but hope that we shall advance higher still. Let 
us be true to our cause." 

Now, wherein is it that this Government deserves these 
encomiums, which come from the intelligent and profound 
wisdom of statesmen, and gush spontaneously from the un- 
learned hearts of the masses of the people.'* Why, it is 
precisely in this point, of its not being a consolidated Gov- 
ernment, and of its not being a narrow and feeble, and weak 
community and Government. Indeed, I may be permitted 
to say that I once heard, from the lips of Mr. Calhoun him- 
self, this recognition, both of the good fortune of this coun- 
try in possessing such a Government, and of the principal 
sources to which the gratitude of a nation should attribute 
that good fortune. I heard him once say, that it was to the 
wisdom, in the great Convention, of the delegates from the 
State of Connecticut, and of Judge Patterson, a delegate 
from the State of New Jersey, that we owed the fact that 
this Government was what it was, the best Government in 
the world, a confederated Government, and not what it 
would have been — and, apparently would have been but 
for those statesmen — the worst Government in the world — 
a consolidated Government. These statesmen, he said, 
were wiser for the South than the South was for herself. 

I need not say to you, gentlemen, that, if all this en- 
comium on the great fabric of our Government is brought 
to naught, and is made nonsense by the proposition that, 
although thus praised and thus admired, it contains within 
itself the principle, the right, the duty, of being torn to 
pieces, whenever a fragment of its people shall be discon- 
tented and desire its destruction, then all this encomium 
comes but as sounding brass and a tinkling cymbal; and the 
glory of our ancestors, Washington, and Madison, and Jef- 
ferson, and Adams — the glory of their successors, Webster, 
and Clay, and Wright, and even Calhoun — for he was no 
votary of this nonsense of secession — passes away, and their 



186 SPEECHES OF AMLLIAM MAX^^TLL EVARTS 

fame grows visibly paler, and the watchful eye of the English 
monarchy looks on for the bitter fruits to be reaped by us for 
our own destruction, and as an example to the world — the 
bitter fruits of the principle of revolution and of the right of 
self-government which we dared to assert against her perfect 
control. Pointing to our exhibition of an actual concourse 
of armies, she will say — "It is in the dragon's teeth, in the 
right of rebellion against the monarchy of England, that 
these armed hosts have found their seed and sprung upon 
your soil." 

Now, gentlemen, such is our Government, such is its ben- 
eficence, such is its adaptation, and such are its successes. 
Look at its successes. Not three-quarters of a century have 
passed away since the adoption of its Constitution, and now 
it rules over a territorv that extends from the Atlantic to 
the Pacific. It fills the wide belt of the earth's surface that 
is bounded by the provinces of England on the North, and 
by the crumbling, and weak, and contemptible Govern- 
ments or no Governments that shake the frame of Mexico 
on the South. Have Nature and Providence left us without 
resources to hold together social unity, notwithstanding the 
vast expanse of the earth's surface which our population has 
traversed and possessed.? No. Keeping pace with our 
wants in that regard, the rapid locomotion of steam on the 
ocean, and on our rivers and lakes, and on the iron roads 
that bind the country together, and the instantaneous 
electric communication of thought, which fills with the same 
facts, and with the same news, and with the same sentiments, 
at the same moment, a great, enlightened, and intelligent 
people, have overcome all the resistance and all the dangers 
which might be attributed to natural obstructions. Even 
now, while this trial proceeds, San Francisco and New York, 
Boston and Portland, and the still farther East, communi- 
cate together as by a flash of lightning — indeed, it may be 
said, making an electric flash farther across the earth's sur- 



THE SAVANNAH PRIVATEERS 187 

face, and more intelligible too, to man, than ever in the natu- 
ral phenomena of the heavens the lightning displayed itself. 
No — the same Author of all good, to whom Pinekney avowed 
his gratitude, has been our friend and protector, and has re- 
moved, step by step, every impediment to our expansion 
which the laws of nature and of space had been supposed to 
interpose. No, no — neither in the patriotism nor in the 
wisdom of our fathers was there any defect; nor shall we 
find, in the disposition and purposes of Divine Providence, 
as we can see them, any excuse or any aid for the destruc- 
tion of this magnificent system of empire. No — it is in 
ourselves, in our own time, and in our own generation, in 
our own failing powers and failing duties, that the crash 
and ruin of this magnificent fabric, and the blasting of the 
future hopes of mankind, is to find its cause and its exe- 
cution. 

I have shown you, gentlemen, how, when the usurpations 
of the British Parliament, striking at the vital point of the 
independence of this country, had raised for consideration and 
determination, by a brave and free people, the question of 
their destiny, our fathers dealt with it. My learned friends, 
in various forms, have spoken poetically, logically and 
practically about all that course of proceedings that has 
been going on in this country, as finding a complete paral- 
lelism, support, and justification in the course of the Ameri- 
can Revolution; and a passage in the Declaration of Inde- 
pendence has been read to you as calculated to show that, 
on a mere theoretical opinion of the right of a people to 
govern themselves, any portion of that people are at liberty, 
as well against a good Government as against a bad one, to 
establish a bad Government as well as overthrow a bad 
Government — have the right to do as they please, and, I 
suppose, to force all the rest of the world and all the rest of 
the nation to just such a fate as their doing as they please 
may bring with it. 



188 SPEECHES OF ^MLLIAM MAXWELL EVARTS 

Let us see how this Dedaration of Independence, called 
by the great forensic orator, Mr, Choate, "a passionate and 
eloquent manifesto," and stigmatized as containing "glit- 
tering generalities" — let us see, I say, how sober, how dis- 
creet, how cautious it is in the presentation of this right, 
even of revolution. I read what, both in the newspapers 
and in political discussions, as well as before you, by the 
learned counsel, have been presented as the doctrines of the 
Declaration of Independence, and then I add to it the quali- 
fying propositions, and the practical, stern requisitions, 
which that instrument appends to these general views: 

"To secure these rights. Governments are instituted 
among men, deriving their just powers from the consent of 
the governed; that whenever any form of Government be- 
comes destructive of these ends, it is the right of the people 
to alter or abolish it, and to institute new Government, 
laying its foundation on such principles, and organizing its 
powers in such form, as to them shall seem most likely to 
effect their safety and happiness. Prudence, indeed, will 
dictate, that Governments long established should not be 
changed for light and transient causes. And, accordingly, all 
experience hath shown, that mankind are more disposed to 
suffer, while evils are sufferable, than to right themselves by 
abolishing the forms to which they are accustomed. But when 
a long train of abuses and usurpations, pursuing invariably 
the same object, evinces a design to reduce them under ab- 
solute despotism, it is their right, it is their duty, to throw 
ofiF such Government, and to provide new guards for their 
future security. Such has been the patient sufferance of 
these Colonies; and such is now the necessity which constrains 
them to alter their former systems of Government. The 
history of the present King of Great Britain is a history of 
repeated injuries and usurpations, all having in direct object 
the establishment of an absolute tyranny over these States. 
To prove this, let facts be submitted to a candid world." 



THE SAVANNAH PRIVATEERS 189 

And it then proceeds to enumerate the facts, in the elo- 
quent language of the Declaration, made familiar to us all by 
its repeated and reverent recitals on the day which cele- 
brates its adoption. There is not anything of moonshine 
about any one of them. There is not anything, perhaps, of, 
or anticipation of, fear or suspicion. There is not anything 
of this or that newspaper malediction, of this or that rhe- 
torical disquisition, of this or that theory, or of this or that 
opprobrium, but a recital of direct governmental acts of 
Great Britain, all tending to the purpose of establishing 
complete despotism over this country. And, then, even 
that not being deemed sufficient, on the part of our great 
ancestors, to justify this appeal to the enlightened opinion 
of the world, and to the God who directs the fate of armies, 
they say: 

"In every stage of these oppressions, we have petitioned 
for redress, in the most humble terms; our repeated petitions 
have been answered only by repeated injury. A Prince 
whose character is thus marked by every act which may 
define a tyrant, is unfit to be the ruler of a free people. 

"Nor have we been wanting in attentions to our British 
brethren. We have warned them, from time to time, of 
attempts by their Legislature to extend an unwarrantable 
jurisdiction over us. We have reminded them of the cir- 
cumstances of our emigration and settlement here. We 
have appealed to their native justice and magnanimity, 
and we have conjured them, by the ties of our common 
kindred, to disavow those usurpations, which would inev- 
itably interrupt our connection and correspondence. 
They, too, have been deaf to the voice of justice and of 
consanguinity." 

Now, gentlemen, this doctrine of revolution, which our 
learned friends rely upon, appeals to our own sense of right 
and duty. It rests upon facts, and upon the purpose, as 
indicated by these facts, to deprive our ancestors of the 



190 SPEECHES OF WILLIAM ]^L\X^^TLL EVARTS 

rights of Englishmen, and to subject them to the power of a 
Government in which they were not represented. Now, 
whence come the occasions and the grievances urged before 
you, and of what kind are they? My learned friend, Mr. 
Brady, has given you a distinct enumeration, under nine 
heads, of what the occasions are, and what the grievances 
are. There is not one of them that, in form or substance, 
proceeded from the Federal Government. There is not a 
statute, there is not a proclamation, there is not an action, 
judicial, executive, or legislative, on the part of the Federal 
Government, that finds a place, either in consummation or 
in purpose, in this indictment drawn by my learned friend 
Mr. Brady against the Government, on behalf of his clients. 
The letter of South Carolina, on completing the revocation 
of her adoption of the Constitution, addressed to the States, 
dwells upon the interest of slavery (as does my friend Mr. 
Brady, in all his propositions), and discloses but two ideas — 
one, that when any body or set of people cease to be a 
majority in a Government, they have a right to leave it; 
and the other, that State action, on the part of some of the 
Northern States, had been inconsistent with, threatening to, 
or opprobrious of the institution of slavery in the Southern 
States. 

Let me ask your attention to this proposition of the 
Southern States, and this catalogue of the learned counsel. 
As it is only the interest of slavery, social and political (for it 
is an interest, lawfully existing), that leads to the destruc- 
tion of our Government and of their Government, let us see 
what there is in the actual circumstances of this interest, as 
being able, under the forms of our Constitution, to look out 
for itself, as well, at least, as any other interest in the coun- 
try, that can justify them in finding an example or a prece- 
dent in the appeal of our fathers to arms to assert their 
rights by the strong hand, because in the Government of 
England they had no representation. Did our fathers say 



THE SAVANNAH PRR^ATEERS 191 

that, because they had not a majority in the EngHsh Par- 
hament, they had a right to rebel? No! They said they 
had not a share or vote in the Parhament. That was their 
proposition. 

I now invite you to consider this fundamental view of the 
right and power of Government, and the right and freedom 
of the people, — to wit, that every citizen is entitled to be 
counted and considered as good as every other citizen, — 
as a natural and abstract right — as the basis of our Govern- 
ment, however other arrangements may have adjusted or 
regulated that simple and abstract right. Then, let us see 
whether the arrangement of the Federal Government, in 
departing from that natural right of one man to be as good 
as another, and to be counted equal in the representation of 
his Government, has operated to the prejudice of the in- 
terest of slavery. We have not heard anything in this coun- 
try of any other interest for many a long year, — much to my 
disgust and discontent. There are other interests, — manu- 
facturing interests, agricultural interests, commercial inter- 
ests, all sorts of interests, some of them discordant, if you 
please. Let us see whether this interest of slavery has a 
fair chance to be heard, and enjoys its fair share of political 
power under our Government, or whether, from a denial to 
it of its fair share, it has some pretext for appealing to force. 
Why, gentlemen, take the fifteen Slave States, which, under 
the census of 1850, had six millions of white people — that is, 
of citizens — and, under the census of 1860, about eight mil- 
lions, and compare them with the white people of the State 
of New York, which, under the census of 1850, had three 
millions, and, under the census of 1860, something like four 
millions. 

Now, here we are, — they as good as we, and we as good as 
they, — we having our interests, and opinions, and feelings — 
they their opinions, interests, and feelings, — and let us see 
how the arrangement of representation, in every part of 



192 SPEECHES OF WILLIAM MAXWELL EVARTS 

our Government, is distributed between these interests. 
Why, with a popuhition just double that of the State of 
New York, the interest of slavery has thirty Senators to 
vote and to speak for it, and the people of New York have 
two Senators to vote and to speak for them. In the House 
of Representatives these same Slave States have ninety 
Representatives to speak and to vote for them; and the 
people of the State of New York have thirty -three to vote 
and to speak for them. And, in the Electoral College, which 
raises to the chief magistracy the citizen who receives the 
constitutional vote, these same States have one himdred 
and twenty electoral votes, and the State of New York has 
thirty-five. Why, the three coterminous States — New York, 
Pennsylvania, and Ohio — have, under either census, as 
great or a greater population than the fifteen Slave States, 
and they have but six Senators, against the Slave States' 
thirtv. 

Do I mention this in complaint? Not in the least. I 
onlv mention it to show vou that the vote and the voice of 
this interest has not been defrauded in the artificial distribu- 
tion of Federal power. And, if I may be allowed to refer 
to the other august department of our Federal Govern- 
ment, the Supreme Court of the United States, in which the 
Presiding Justice has his seat as one of the members of 
that Court, you will see how the vast population, the vast 
interests of business, commerce, and what not, that reside 
in the Free States, as com])ared with the lesser population, 
the lesser business, and the lesser demand for the authority 
or intervention of the judiciary in the Slave States, have 
been represented for years, by the distribution of the nine 
Judges of that Court, so that the eighteen millions of white 
people who compose the population of the Free States have 
been represented (not in any political sense) by four of 
these Justices; and the rest of the country, the fifteen Slave 
States, with their population of six or eight millions, have 



THE SAVANNAH PRIVATEERS 193 

been represented by five. Now, of this I do not complain. 
It is law — it is government; and no injustice has been done to 
the Constitution, nor has it been violated in this arrange- 
ment. But, has there been any fraud upon the interest 
of slavery, in the favor the Federal Government has shown 
in the marking out of the Judicial Districts, and in the 
apportionment of the Judges to the different regions of the 
country, and to the population of those regions.^ If j^ou look 
at it as regards the business in the different Circuits, the 
learned Justice who now presides here, and who holds his 
place for the Second Circuit including our State, disposes 
annually, here and in other Courts, of more business than, 
I may perhaps say, all the Circuits that are made up from 
the Slave States. And, if you look at it as regards the popu- 
lation, there was one Circuit — that which was represented by 
the learned Mr. Justice McLean, lately deceased — which 
contained within itself five millions of white, free population; 
while one other Circuit, represented by another learned 
Justice, lately deceased— a Circuit composed of Mississippi 
and Arkansas — contained only 450,000, at the time of the 
completion of the census of 1850. Who complains of this.-^ 
Do we? Never. But, when it is said to you that there is 
a parallelism between the right of revolt, because of lack 
of representation, in the case of our people and the Par- 
liament of England, and the case of these people and the 
United States, or any of the forms of its administration of 
power, remember these things. I produce this in the simple 
duty of forensic replj^ to the causes put forward as a justi- 
fication of this revolt — that is to say that, the Government 
oppressing them, or the Government closed against them, 
and they excluded from it, they had a right to resort to the 
revolution of force. 

You, therefore, must adopt the proposition of South 
Carolina, that, when any interest ceases to be the majority 
in a Government, it has a right to secede. How long would 

15 



194 SPEECHES OF WILLIAM MAXWELL EVARTS 

such a Government last? Why, there was never any in- 
terest in this country which imagined that it had a ma- 
jority. Did tlie tariff interest have a majority? Did the 
grain interest have a majority? Did the commercial in- 
terest have a majority? Did tlie States of the West have a 
majority? Does California gold represent itself by a ma- 
jority? Why, the very safety of such a Government as this, 
is, that no interest shall or can be a majority; but that the 
concurring, consenting wisdom drawn out of these con- 
flicting interests shall work out a system of law which will 
conduce to the general interest. 

Now, that I have not done my learned friend, Mr. Brady, 
any injustice in presenting the catalogue of grievances (not 
in his own view, but in the view of those who have led in this 
rebellion), let us see what they are: 

"The claim to abolish slavery." Is there any statute of 
the United ^States anywhere that has abolished it? Has 
any Act been introduced into Congress to abolish it? Has 
the measure had a vote? 

"Stoppage of the inter-state slave-trade." I may say 
the same thing of that. 

"No more slavery in the Territories." Where is the Act 
of Congress, where is the movement of the Federal Govern- 
ment, where the decision of the Supreme Court, that holds 
that slavery cannot go into a territory? Why, so far as 
acts go, everything has gone in the way of recognizing the 
confirmation of the right— the repeal of the Missouri Com- 
promise by Congress, and the decision of the Federal Court, 
if it go to that extent, as is claimed, in the case of Dred Scott. 

"Nullification of the fugitive-slave law." Who passed 
the fugitive-slave law? Congress. W'ho have enforced it? 
The Federal power, by arms, in the city of Boston. Who 
have enjoined its observation, to Grand Juries and to Juries? 
The Justices of the Supreme Court of the United States, in 
their Circuits. Who have held it to be constitutional? 



THE SAVANNAH PRIVATEERS 195 

The Supreme Court of the United States, and the subordi- 
nate Courts of the United States, and every State Court that 
has passed upon the subject, except it be the State Court of 
the State of Wisconsin, if I am correctly advised. 

"Underground railroads, supported by the Government, 
and paid by them." Are they.? Not in the least. 

"The case of the Creole" — where, they say, no protection 
was given to slaves on the high seas. Is there any judicial 
interpretation to that effect.? Nothing but the refusal of 
Congress to pass a bill, under some circumstances of this or 
that nature, presented for its consideration; and, because it 
has refused, it is alleged there is the assertion of some principle 
that should charge upon this Government the inflamed and 
particular views generally maintained on slavery by Garrison, 
Phillips, and Theodore Parker. The other enormities they 
clothe in general phrase, and do not particularly specify, ex- 
cept one particular subject — what is known as the "John 
Brown raid " — in regard to which, as it has been introduced, 
I shall have occasion to say something in another connection, 
and, therefore, I will not comment upon it now. 

I find, however, I have omitted the last — Mr. Lincoln's 
doctrine, that it is impossible, theoretically, for slave and 
free States to co-exist. For many years, that was considered 
to be Mr. Seward's doctrine, but, when Mr. Lincoln became 
a candidate for the Presidency, it was charged on him, 
being supported by some brief extracts from former speeches 
made by him in canvassing his State. I cannot discuss all 
these matters. They are beneath the gravity of State 
necessity, and of the question of the right of revolution. 
They are the opinions, the sentiments, the rhetoric, the 
folly, the local rage and madness, if you please, in some in- 
stances, of particular inflammations, either of sentiment 
or of action, rising in the bosom of so vast, so impetuous a 
community as ours. But, suppose the tariff States, sup- 
pose the grain States, were to attempt to topple down 



196 SPEECHES OF AVILLIAM MAXWELL EVARTS 

the Government, and maintain a separate and sec- 
tional independence upon their interests, of only the 
degree and gravity, and resting in the proof of facts like 
these! Now, for the purpose of the argument, let us sup- 
pose all these things to be wrong. My learned friends, 
who have made so great and so passionate an appeal that 
individual lives should not be sacrificed for opinion, certainly 
might listen to a proposition that the life of a great nation 
should not be destroyed on these questions of the opinions 
of individual citizens. No — you never can put either the 
fate of a nation that it must submit, or the right of malcon- 
tents to assert their power for its overthrow, upon any such 
proposition, of the ill-working, or of the irritations that 
arise, and do not come up to the effect of oppression, in the 
actual, the formal, and the persistent movement of Gov- 
ernment. Never for an instant. For that would be, what 
Mr. Stephens has so ably presented the folly of doing, to 
require that a great Government, counting in its population 
thirty millions of men, should not only be perfect in its de- 
sign and general form and working, but that it should secure 
perfect action, perfect opinions, perfect spirit and sentiments 
from every one of its people — and that, made out of mere 
imperfect individuals who have nothing but poor human 
nature for their possession, it should suddenly become so 
transformed, as to be without a flaw, not only in its ad- 
ministration, but in the conduct of everybody under it. 

Now, my learned friends, pressed by this difficulty as to 
the sufficiency of the causes, are driven finally to this — 
that there is a right of revolution when anybody thinks 
there is a right of revolution, and that that is the doctrine 
upon which our Government rests, and upon which the 
grave, serious action of our forefathers proceeded. And it 
comes down to the proposition of my learned friend, Mr. 
Bradv, that it all comes to the same thing, the fower and 
the right. All the argument, most unquestionably, comes 



THE SAVANNAH PRIVATEERS 197 

to that. But do morals, does reason, does common sense 
recognize that, because power and right may result in the 
same consequences, therefore there is no difference in their 
quality, or in their support, or in their theory? If I am slain 
by the sword of justice for my crime, or by the dagger of an 
assassin for my virtue, I am dead, under the stroke of either. 
But is one as right as the other.'^ An oppressive Govern- 
ment may be overthrown by the uprising of the oppressed, 
and Lord Camden's maxim may be adhered to, that "when 
oppression begins, resistance becomes a right;" but a Gov- 
ernment, beneficent and free, may be attacked, may be 
overthrown by tyranny, by enemies, by mere power. The 
Colonies may be severed from Great Britain, on the prin- 
ciple of the right of the people asserting itself against the 
tyranny of the parent Government; and Poland may be dis- 
membered by the interested tyranny of Russia and Austria; 
and each is a revolution and destruction of the Government, 
and its displacement by another — a dismemberment of the 
community, and the establishment of a new one under 
another Government. But, do my learned friends say that 
they equally come to the test of power as establishing the 
right.'* Will my learned friend plant himself, in justifica- 
tion of this dismemberment of a great, free, and prosperous 
people, upon the example of the dismemberment of Poland, 
by the introduction of such influences within, and by the 
co-operation of such influences without, as secured that 
result? Certainly not. And yet, if he puts it upon the 
right and the power, as coming to the same thing, it cer- 
tainly cannot make any difference whether the power pro- 
ceeds from within or from without. There is no such right. 
Both the public action of communities and the private ac- 
tion of individuals must be tried, if there is any trial, any 
scrutiny, any judgment, any determination, upon some 
principles that are deeper than the question of counting 
bayonets. When we are referred to the case of Victor 



198 SPEECHES OF \VILLIAM MAXWELL EVARTS 

Emmanuel overthrowing the throne of the King of Naples, 
and thus securing the unity of the Italian people under a 
benign Government, are we to be told that the same prin- 
ciple and the same proposition would have secured accep- 
tance before the forum of civilization, and in the eye of 
morality, to a successful effort of the tyrant of Naples to 
overthrow the throne of Victor Emmanuel, and include the 
whole of Italy under his, King Bomba's, tyranny? No one. 
The quality of the act, the reason, the support, and the 
method of it, are traits that impress their character on those 
great public and national transactions as well as upon any 
other. 

There is but one proposition, in reason and morality, 
beyond those I have stated, which is pressed for the extrica- 
tion and absolution of these prisoners from the guilt that 
the law, as we say, impresses upon their action and visits 
with its punishment. It is said that, however little, as 
matter of law, these various rights and protections may come 
to, good faith, or sincere, conscientious conviction on the 
part of these men as to what they have done, should protect 
them against the public justice. 

Now, we have heard a great deal of the assertion and of 
the execration of the doctrine of the "higher law," in the 
discussions of legislation, and in the discussions before the 
popular mind; but I never yet have heard good faith or sin- 
cere opinion pressed, in a Court of Justice, as a bar to the 
penalty which the law has soberly affixed, in the discreet and 
deliberate action of the Legislature. And here my learned 
friend furnishes me, by his reference to the grave instance of 
injury to the property, and the security, and the authority of 
the State of Virginia, which he has spoken of as "John 
Brown's raid," with a ready instance, in which these great 
principles of public justice, the authority of Government, 
and the sanctions of human law were met, in the circum- 
stances of the transaction, by a complete, and thorough, and 



THE SAVANNAH PRIVATEERS 199 

remarkable reliance, for the motive, the support, the stimu- 
lus, the solace, against all the penalties which the law had 
decreed for such a crime, on this interior authority of con- 
science, and this supremacy of personal duty, according to 
the convictions of him who acts. The great State of Virginia 
administered its justice, and it found, as its principal victim, 
this most remarkable man, in regard to whom it was utterly 
impossible to impute anything like present or future, 
near or remote, personal interest or object of any kind — a 
man in regard to whom Governor Wise, of Virginia, said, in 
the very presence of the transaction of his trial, that he was 
the bravest, the sincerest, the truthfulest man that he ever 
knew. And now, let us look at the question in the light in 
which our learned friend presents it— that John Brown, as 
matter of theoretical opinion of what he had a right to do, 
under the Constitution and laws of his country, was justified, 
upon the pure basis of conscientious duty to God — and let 
us see whether, before the tribunals of Virginia, as matter of 
fact, or matter of law, or right, or duty, any recognition was 
given to it. No. John Brown was not hung for his theo- 
retical heresies, nor was he hung for the hallucinations of 
his judgment and the aberration of his wrong moral sense, if 
you so call it, instead of the interior light of conscience, as 
he regarded it. He was hung for attacking the sovereignty, 
the safety, the citizens, the property, and the people of 
Virginia. And, when my learned friend talks about this 
question of hanging for political, moral, or social heresy, and 
that you cannot thus coerce the moral power of the mind, 
he vainly seeks to beguile your judgment. When Ravaillae 
takes the life of good King Henry of France, is it a justifica- 
tion that, in the interests of his faith, holy to him — of the 
religion he professed — he felt impelled thus to take the life 
of the monarch? When the assassin takes, at the door of 
the House of Commons, the life of the Prime Minister, 
Mr. Percival, because he thinks that the course of measures 



200 SPEECHES OF ^VILLIAM ^L\XAVELL EVARTS 

his administration proposes to carry out is dangerous to the 
country, and falls a victim to violated laws, I ask, in the 
name of common sense and common fairness — are these 
executions to be called hanging for political or religious here- 
sies? No. And shall it ever be said that sincere convictions 
on these theories of secession and of revolution are entitled 
to more respect than sincere convictions and opinions on the 
subject of human rights? Shall it be said that failh in 
Jefferson Davis is a greater protection from the penalty of 
the law than faith in God was to John Brown or PVancis 
Ravaillae? But, gentlemen, it was said that certain isolated 
acts of some militarv or civil authoritv of the Ignited States, 
or some promulgation of orders, or affirmation of measures 
by the Government, had recognized the belligerent right, 
or the right to be considered as a power fighting for inde- 
pendence, of this portion of our countrymen. The flags of 
truce, and the capitulation at Hatteras Inlet, and the an- 
nouncement that we would not invade Virginia, but would 
protect the Capital, are claimed as having recognized this 
point. Now, gentlemen, this attempts either too much or 
too little. Is it gravely to be said that, when the Govern- 
ment is pressing its whole power for the restoration of peace 
and for the suppression of this rebellion, it is recognizing a 
right to rebel, or has liberated from the penalties of the 
criminal law such actors in it as it may choose to bring to 
punishment? Is it to be claimed here that, by reason of 
these proceedings, the Government has barred itself from 
taking such other proceedings, under the same circumstances, 
as it may think fit? Why, certainly not. The Govern- 
ment may, at any time, refuse to continue this amenity of 
jQags of truce. It can, the next time, refuse to receive a 
capitulation as "prisoners of war," and may, in any future 
action — as, indeed, in its active measures for the suppression 
of the rebellion it is doing — affirm its control over every part 
of the revolted regions of this country. There is nothing 



THE SAVANNAH PRIVATEERS 201 

in this fact that determines anything for the occasion, but 
the occasion itself. The idea that the commander of an 
expedition to Hatteras Inlet has it in his power to commit 
the Government, so as to empty the prisons, to overthrow 
the Courts, and to discharge Jurors from their duty, and 
criminals from the penalties of their crimes, is absurd, 

I shall now advert to the opinion of Judge Cadwalader, 
on the trial in Philadelphia, and to the propositions of the 
counsel there, on behalf of the prisoners, as containing and 
including the general views and points urged, in one form 
or another, and with greater prolixity, at least, if not ear- 
nestness and force, by the learned counsel who defend the 
prisoners here. It will be found that those points cover all 
these considerations: 

First. If the Confederate States of America is a Govern- 
ment, either de facto or de jure, it had a right to issue letters 
of marque and reprisal; and if issued before the commission 
of the alleged offence, that the defendant, acting under the 
authority of such letters, would be a privateer, and not a 
pirate, and, as such, is entitled to be acquitted. 

Second. That if, at the time of the alleged offence, the 
Southern Confederacy, by actual occupation, as well as acts 
of Government, had so far acquired the mastery or control 
of the particular territory within its limits as to enable it to 
exercise authority over, and to demand and exact allegiance 
from, its residents, that then a resident of such Con- 
federacy owes allegiance to the Government under which 
he lives, or, at least, that by rendering allegiance to such 
Government, w^hether on sea or land, he did not thereby 
become a traitor to the Government of the United States. 

Third. That if, at the time of the alleged offence and the 
issuing of the letters of marque and reprisal upon which the 
defendant acted, the Courts of the United States were so 
suspended or closed in the Southern Confederacy, as to be 
no longer able to administer justice and enforce the law in 



202 SPEECHES OF ^^^LLIAM IMAX^^TLL EVARTS 

such Confederacy, that the defendant thereby became so 
far absolved from his allegiance to the United States as to 
enable him to take up arms for, and to enter the service of, 
the Southern Confederacy, either on land or sea, without 
becoming a traitor to the Government of the I'nited States. 

Fourth. That if, at the time of the alleged offence and his 
entering into the service of the Southern Confederacy, the 
defendant was so situated as to be unable to obtain either 
civil or military protection from the Ignited States, whilst at 
the same time he was comj)elled to render either military or 
naval service to the Southern Confederacy, or to leave the 
country, and, in this event, to have his property sequestrated 
or confiscated by the laws of the said Confederacy, that such 
a state of things, if they existed, would amount in law to 
such duress as entitles the defendant here to an acquittal. 

Fifth. That this Court has no jurisdiction of the case, 
because the prisoner, after his apprehension on the high seas, 
was first brought into another District, and ought to have 
been there tried. 

And now, gentlemen, even a more remote, unconnected 
topic, has been introduced into this examination, and dis- 
cussed and pursued with a great deal of force and feeling, by 
my learned friend, Mr. Brady; and that is, what this war is 
for, and what is expected to be accomplished by it. Well, 
gentlemen, is your verdict to depend upon any question of 
that kind? Is it to depend either upon the purpose of the 
Government in waging the war, or upon its success in that 
purpose? If so, the trial had been better postponed to the 
end of the war, and then you will find your verdict in the 
result. What is the meaning of this? Let those who began 
the war say what the war is for. Is it to overthrow this 
Government and to dismember its territory? Is it to ac- 
quire dominion over as large a portion of what constitutes 
the possessions of the American people, and over as large a 
share of its population, as the policy or the military power 



THE SAVANNAH PRIVATEERS 203 

of the interest that establishes for itself an independent 
Government, for its own protection, can accomplish? Who 
are seeking to subjugate, and who is seeking to protect? 
No subjugation is attempted or desired, in respect of the 
people of these revolting States, except that subjugation 
which they themselves made for themselves when they 
adopted the Constitution of the United States, and thanked 
God, with Charles Cotesworth Pinckney, that his blessing 
permitted them to do so,— and, up to this time, with Alex- 
ander Stephens, have found it to be a Government that can 
only be likened, on this terrestrial sphere, to the Eden 
and Paradise of the nations of men. What is the in- 
terest that is seeking to wrest from the authority of that 
benign Government portions of its territory and authority, 
but the social and political interest of slavery, about which 
I make no other reproach or question than this — that it has 
purposes, and objects, and principles which do not consult 
the general or equal interests of the population of these 
revolting States themselves, nor contemplate a form of 
Government that any Charles Cotesworth Pinckney, now, 
or any Alexander Stephens, hereafter, can thank God for 
having been permitted to establish; and that, as Mr. Stephens 
has said, instead of becoming gods, by bursting from the 
restraints of this Eden, they will discover their own naked- 
ness, and, instead of finding peace and prosperity, they will 
come to cutting their own throats. 

Now, what is the duty of a Government that finds this 
assault made by the hands of terror and of force against the 
judgment and wishes of the discreet, sober, and temperate, 
at least, to those to whom it owes protection, as they owe 
allegiance to it? What, but to carry on, by the force of the 
Government, the actual suppression of the rebellion, so 
that arms may be laid down, peace may exist, and the law 
and the Constitution be reinstated, and the great debate of 
opinion be restored, that has been interrupted by this vehe- 



^04 SPEECHES OF WILLL\M IVLVXWELL EVARTS 

meiit recourse to arms? What, but to see to it that, instead 
of the consequences of this revolt being an expulsion, from 
this Paradise of free Government, of these people whom we 
ought to keep within it, it shall end in the expulsion of that 
tempting serpent — be it secession or be it slavery — that 
would drive them out of it. Government has duties, gentle- 
men, as well as rights. If our lives and our property are 
subject to its demands under the penal laws, or for its 
protection and enforcement as an authority in the world, 
it carries to every citizen, on the farthest sea, in the humblest 
schooner, and to the great jiopulation of these Southern 
States in their masses at home, that firm jirotection which 
shall secure him against the wicked and the willful assaults, 
whether it be of a pirate on a distant sea, or of an ambitious 
and violent tyranny ui)on land. When this state of peace 
and repose is accom])lished by Conventions, by petitions, by 
representations against Federal laws. Federal o])pressions, 
or Federal principles of Government, the right of the people 
to be relieved from oppression is presented; and then may 
the spirit and the action of our fathers be invoked, and their 
condenmation of the British Parliament come in play, if we 
do not do what is right and just in liberating an oppressed 
people. But I need not say to you that the whole active 
energies of this system of terror and of force in the Southern 
states have been directed to make impossible precisely the 
same debate, the same discussion, the same appeal, and the 
same just and equal attention to the appeal. And you will 
find this avowed by many of their speakers and many of 
their writers — as, w^hen Mr. Toombs interrupts Mr. Steph- 
ens in the speech I have quoted from, when urging that the 
people of Georgia should be consulted, by saying: "I am 
afraid of Conventions and afraid of the people; I do not want 
to hear from the cross-roads and the groceries," which are 
the opportunities of public discussion and influence, it ap- 
pears, in the State of Georgia. That is exactly w-hat they 



THE SAVANNAH PRIVATEERS 205 

did not want to hear from; and their rash withdrawal of this 
great question from such honest, sensible consideration, will 
finally bring them to a point that the people, interested in 
the subject, will take it by force; and then, besides their own 
nakedness, which they have now discovered, the second 
prophecy of Mr. Stephens, that they will cut their own 
throats, will come about; and nothing but the powerful yet 
temperate, the firm yet benign, authority of this Govern- 
ment, compelling peace upon these agitations, will save 
those communities from social destruction and from inter- 
necine strife at home. 

Now, having such an object, can it be accomplished? It 
cannot, unless you try; and it cannot, if every soldier who 
goes into the field concludes that he will not fire off his gun, 
for it is uncertain whether it will end the war; or if, on any 
post of duty that is devolved upon citizens in private life, 
we desert our Government, and our full duty to the Govern- 
ment. But that it can be done, and that it will be done, and 
that all this talk and folly about conquering eight millions 
of people will result in nothing, I find no room to doubt. 
In the first place, where are your eight millions? Why, 
there are the fifteen Slave States, and four of them — Mary- 
land, Delaware, Kentucky, and Missouri — are not yet within 
the Confederacy. So we will subtract three millions, at 
least, for that part of the concern. Then there are five mil- 
lions to be conquered; and how are they to be conquered? 
Why, not by destruction, not by slaughter, not by chains 
and manacles; but by the impression of the power of the 
Government, showing that the struggle is vain, that the 
appeal to arms was an error and a crime, and that, in the 
region of debate and opinion, and in equal representation 
in the Government itself, is the remedy for all grievances and 
evils. Be sure that, whatever may be said or thought of 
this question of war, these people can be, not subjugated, 
but compelled to entertain those inquiries by peaceful 



206 SPEECHES OF AVILLIAM MAXWELL EVARTS 

means; and I am happy to be able to say that the feeble 
hopes and despairing views which my learned friend, Mr. 
Brady, has thought it his duty to express before you, as to 
the hopelessness of any useful result in these hostilities, is 
not shared by one whom my friend, in the eloquent climax 
to an oration, placed before us as "starting, in a red shirt, to 
secure the liberties of Italy." I read his letter: 

"Caprera, Sept. 10. 
"Dear Sir: I saw Mr. Sanford, and regret to be obliged to 
announce to you that I shall not be able to go to the United 
States at present. I do not doubt the triumph of the cause 
of the Union, and that shortly; but, if the war should unfor- 
tunately continue in your beautiful country, I shall over- 
come the obstacles which detain me and hasten to the defence 

of a people who are dear to me. 

"G. Garibaldi." 

Garibaldi has had some experience, and knows the differ- 
ence between efforts to make a people free, and the warlike 
and apparently successful efforts of tyranny; and he knows 
that a failure, even temporary, does not necessarily secure 
to force, and fraud, and violence a permanent success. He 
knows the difference between restoring a misguided people 
to a free Government, and putting down the efforts of a 
people to get up a free Government. He knows those are two 
different things; and, if the war be not shortly ended, as he 
thinks it will be, then he deems it right for him, fresh from 
the glories of securing the liberties of Italy, to assist in main- 
taining—what? Despotism? No! the liberties of America. 

One of the learned counsel, who addressed you in a strain 
of very effective and persuasive eloquence, charmed us all 
by the grace of his allusion to a passage in classical history, 
and recalled your attention to the fact that, when the States 
of Greece which had warred against Athens, anticipating her 
downfall beneath the prowess of their arms, met to determine 



THE SAVANNAH PRR^ATEERS 207 

her fate, and when vindictive Thebes and envious Corinth 
counseled her destruction, the genius of the Athenian Sopho- 
cles, by the recital of the chorus of the Electra, disarmed this 
cruel purpose, by reviving the early glories of united Greece. 
And the counsel asked that no voice should be given to 
punish harshly these revolted States, if they should be con- 
quered. 

The voice of Sophocles, in the chorus of the Electra, and 
those glorious memories of the early union, were produced 
to bring back into the circle of the old confederation the 
erring and rebellious Attica. So, too, what shall we find 
in the memories of the Revolution, or in the eloquence with 
which we have been taught to revere them, that will not 
urge us all, by every duty to the past, to the present, and to 
the future, to do what we can, whenever a duty is reposed in 
us, to sustain the Government in its rightful assertion of 
authority and in the maintenance of its power.^ Let me ask 
your attention to what has been said by the genius of Web- 
ster, on so great a theme as the memory of Washington, 
bearing directly on all these questions of union, of glory, of 
hope, and of duty, which are involved in this inquiry. See 
whether, from the views thus invoked, there will not follow 
the same influence as from the chorus of the Electra, for the 
preservation, the protection, the restoration of every portion 
of what once was, and now is, and, let us hope, ever shall be, 
our common country. 

On the occasion of the centennial anniversary of the birth- 
day of Washington, at the national Capitol, in 1832, Mr. 
Webster, by the invitation of men in public station as well 
as of the citizens of the place, delivered an oration, about 
which I believe the common judgment of his countrymen 
does not differ from what is known to have been his own 
idea, that it was the best presentation of his views and feel- 
ings which, in the long career of his rhetorical triumphs, 
he had had the opportunity to make. 



208 SPEECHES OF \\TLLL\M ^LVX^\'ELL EVARTS 

No man ever tliought or spoke of tlie character of Wash- 
ington, and of tlic great j)art in liunian atVairs which he 
j)hiyetl, witliout knowing and fcchng that the crowning 
glory of all his labors in the field and in the council, and the 
perpetual monument to his fame, if his fame shall be per- 
I)etual, would be found in the establishment of the American 
Union under the American Constitution. All the prowess 
of the war, all the spirit of the Itcvolution, all the fortitude 
of the efi'ort, all the self-denial of the sacrifice of that period, 
were for nothing, and worse than nothing, if the result and 
consummation of the whole were to be but a Government that 
contained within itself the seeds of its own destruction, and 
existed only at the caprice and whim of whatever part of 
the people should choose to deny its rightfulness or seek to 
overthrow its authority. In pressing that view, Mr. Web- 
ster thus attracts the attention of his countrymen to the 
great achievements in human affairs which the establishment 
of this Government has proved to be, and thus illustrates 
the character of Washington: 

"It was the extraordinary fortune of Washington that, 
having been intrusted, in revolutionary times, with the su- 
preme military command, and having fulfilled that trust with 
equal renown for wisdom and for valor, he should be placed 
at the head of the first Government in which an attempt was 
to be made, on a large scale, to rear the fabric of social order 
on the basis of a written Constitution and of a pure represent- 
ative principle. A Government was to be established, with- 
out a throne, without an aristocracy, without castes, orders, 
or privileges; and this Government, instead of being a 
democracy, existing and acting within the walls of a single 
city, was to be extended over a vast country, of different 
climates, interests and habits, and of various communions of 
our common Christian faith. The experiment certainly was 
entirely new. A popular Government of this extent, it was 
evident, could be framed only by carrying into full effect 



THE SAVANNAH PRIVATEERS 209 

the principle of representation or of delegated power; and 
the world was to see whether society could, by the strength 
of this principle, maintain its own peace and good govern- 
ment, carry forward its own great interests, and conduct 
itself to political renown and glory. 

***** 

"I remarked, gentlemen, that the whole world was and is 
interested in the result of this experiment. And is it not 
so? Do we deceive ourselves, or is it true that at this mo- 
ment the career which this Government is running is among 
the most attractive objects to the civilized world. '^ Do we 
deceive ourselves, or is it true that at this moment that love 
of liberty and that understanding of its true principles, 
which are flying over the whole earth, as on the wings of all 
the winds, are really and truly of American origin? 

***** 

"Gentlemen, the spirit of human liberty and of free Gov- 
ernment, nurtured and grown into strength and beauty in 
America, has stretched its course into the midst of the na- 
tions. Like an emanation from Heaven, it has gone forth, 
and it will not return void. It must change, it is fast chang- 
ing, the face of the earth. Our great, our high duty, is to 
show, in our own example, that this spirit is a spirit of health 
as well as a spirit of power; that its longevity is as great as 
its strength; that its efficiency to secure individual rights, 
social relations, and moral order, is equal to the irresistible 
force with which it prostrates principaHties and powers. 
The world at this moment is regarding us with a willing, but 
something of a fearful, admiration. Its deep and awful 
anxiety is to learn whether free States may be stable as well 
as free; whether popular power may be trusted, as well as 
feared; in short, whether wise, regular, and virtuous self- 
government is a vision for the contemplation of theorists, 
or a truth established, illustrated, and brought into practice 
in the country of Washington. 



16 



210 SPEECHES OF WILLIAM MAXWELL EVARTS 

"Gentlemen, for the eartli which we inhahit, and the whole 
circle of the sun, for all the unborn races of mankind, we 
seem to hold in our hands, f6r their weal or woe, the fate of 
this experiment. If we fail, who shall venture the repeti- 
tion? If our example shall prove to be one, not of encour- 
agement, but of terror, not fit to be imitated, but fit only to 
be shunned, where else shall the world look for free models? 
If this great Western Sun be struck out of the firmament, at 
what other fountain shall the lamp of liberty hereafter be 
lighted? What other orb shall emit a ray to glimmer, even, 

on the darkness of the world? 

* * * * ♦ 

"The political prosperity whichthis country has attained 
and which it now enjoys, has been acquired mainly through 
the instrumentality of the present Government. While 
this agent continues, the capacity of attaining to still higher 
degrees of prosperity exists also. We have, while this lasts, 
a political life ca])able of beneficial exertion, with power to 
resist or overcome misfortunes, to sustain us against the 
ordinary accidents of human aft'airs, and to ])romote, by 
active efforts, every public interest. But dismemberment 
strikes at the very being which preserves these faculties. 
It would lay its rude and ruthless hand on this great agent 
itself. It would sweep away, not only what we possess, but 
all power of regaining lost, or acquiring new, possessions. 
It would leave the country, not only bereft of its prosperity 
and happiness, but without limbs, or organs, or faculties by 
which to exert itself hereafter in the pursuit of that prosperity 
and happiness. 

"Other misfortunes may be borne, or their effects overcome. 
If disastrous war should sweep our commerce from the ocean, 
another generation may renew it; if it exhaust our treasury, 
future industry may replenish it; if it desolate and lay 
waste our fields, still, under a new cultivation, they will 
grow green again, and ripen to future harvests. It were but 



THE SAVANNAH PRIVATEERS 211 

a trifle even if the walls of yonder Capitol were to crumble, 
if its lofty pillars should fall, and its gorgeous decorations 
be all covered by the dust of the valley. All these might be 
rebuilt. But who shall reconstruct the fabric of demolished 
Government? Who shall rear again the well-proportioned 
columns of constitutional liberty.'* Who shall frame to- 
gether the skillful architecture which unites national sover- 
eignty with State rights, individual security, and public 
prosperity .f* No, if these columns fall, they will be raised 
not again. Like the Coliseum and the Parthenon, they will 
be destined to a mournful, a melancholy immortality. Bit- 
terer tears, however, will flow over them, than were ever 
shed over the monuments of Roman or Grecian art; for they 
will be the remnants of a more glorious edifice than Greece 
or Rome ever saw — the edifice of constitutional American 
libertv. 

** A hundred years hence other disciples of W^ashington will 
celebrate his birth, with no less of sincere admiration than 
we now commemorate it. When thev shall meet, as we 
now meet, to do themselves and him that honor, so surely 
as thev shall see the blue summits of his native mountains 
rise in the horizon, so surely as they shall behold the river 
on whose banks he lived, and on whose banks he rests, still 
flowing on toward the sea, so surely may they see, as we 
now see, the flag of the Union floating on the top of the 
Capitol; and then, as now, may the sun in his course visit 
no land more free, more happy, more lovely, than this our 
own country!" 

If, gentlemen, the eloquence of Mr. Webster, which thus 
enshrines the memory and the great life of Washington, calls 
us back to the glorious recollections of the Revolution and 
the establishment of our Govermnent, does it not urge every 
man everywhere that his share in this great trust is to be 
performed now or never, and wherever his fidelity and his 



212 SPEECHES OF TMLLIAM MAXW'ELL EVARTS 

devotion to his country, its Government, and its spirit, 
shall place the responsibility upon him? It is not the fault 
of the Government, of the learned District Attorney, or of 
me, his humble associate, that this, your verdict, has been 
removed, by the course of this argument and by the course 
of this eloquence on the part of the prisoners, from the simple 
issue of the guilt or innocence of these men under the statute. 
It is not the action or the choice of the Government, or of 
its counsel, that you have been drawn into higher considera- 
tions. It is not our fault that you have been invoked to give, 
on the undisputed facts of the case, a verdict which shall be 
a recognition of the power, the authority, and the right of 
the rebel Government to infringe our laws, or partake in the 
infringement of them, to some form and extent. And now, 
here is your duty, here your post of fidelity — not against 
law, not against the least right under the law, but to sustain, 
by whatever sacrifice there may be of sentiment or of feeling, 
the law and the Constitution. I need not say to you, 
gentlemen, that if, on a state of facts which admits no di- 
versity of opinion, with these opposite forces arrayed, as 
they now are, before you — the Constitution of the United 
States, the laws of the United States, the commission of this 
learned Court, derived from the Government of the United 
States, the venire and the empanneling of this Jury, made 
under the laws and by the authority of the United States, 
on our side — met, on their side, by nothing, on behalf of 
the prisoners, but the commission, the power, the right, the 
authority of the rebel Government, proceeding from Jef- 
ferson Davis — you are asked, by the law, or under the law, 
or against the law, in some form, to recognize this power, and 
thus to sav that the follv and the weakness of a free Govern- 
ment find here their last extravagant demonstration, then 
you are asked to say that the vigor, the judgment, the sense, 
and the duty of a Jury, to confine themselves to their respon- 
sibility on the facts of the case, are worthless and yielding 



THE SAVANNAH PRIVATEERS 213 

before impressions of a discursive and loose and general 
nature. Be sure of it, gentlemen, that, on what I suppose 
to be the facts concerning this particular transaction, a 
verdict of acquittal is nothing but a determination that our 
Government and its authority, in the premises of this trial, 
for the purposes of your verdict, are met and overthrown by 
the protection thrown around the prisoners by the Govern- 
ment of the Confederate States of America, actual or in- 
cipient. Let us hope that you will do what falls to your 
share in the post of protection in which you are placed, for 
the liberties of this nation and the hopes of mankind; for, in 
surrendering them, you will be forming a part of the record 
on the common grave of the fabric of this Government, and 
of the hopes of the human race, where our flag shall droop, 
with every stripe polluted and every star erased, and the 
glorious legend of "Liberty and Union, now and forever, one 
and inseparable," replaced by this mournful confession, 
"Unworthv of freedom, our baseness has surrendered the 
liberties which we had neither the courage nor the virtue to 
love or defend." 



Ill 

ARGUMENT IN THE UNITED STATES SUPREME 
COURT ON BEHALF OF THE GOVERNMENT 
IN THE CASE OF PETER MILLER AND 
OTHERS, CLAIMANTS OF THE BARQUE HIA- 
WATHA, ETC., AGAINST THE UNITED STATES, 
AND OTHER CASES. (THE PRIZE CASES.) 

NOTE 

What were Ioiotvti at the time, and are reported in the Supreme 
Court Reports, as the "Prize Cases" (2 Black, 635-699) arose very 
soon after the outbreak of the Civil War, from the capture by- 
vessels of the United States Navy of vessels and cargoes, either on 
the high seas or in the course of attempted breach of the blockade 
of Southern ports, which had been established under the proclama- 
tions of President Lincoln. The vessels and cargoes in question 
were captured under claim of lawful prize under the laws of war 
and taken into the ports of the United States, where condemnation 
under the law of Prize Courts followed. The cases, four in num- 
ber, came before the Supreme Court on appeals from the judgments 
of condemnation, two from the U. S. Circuit Court for the Southern 
District of New York, one from the United States District Court 
for the Southern District of Florida, and one from the United 
States Circuit Court for the District of Massachusetts. It was 
arranged with the Court by the various counsel engaged that 
argument upon all the cases should be had at the same time. 

The general questions involved in the decision of these cases may 
be stated in the language of the Court at the very beginning of the 
opinion delivered by Mr. Justice Grier. The Court says: "There 
are certain propositions of law which must necessarily affect the ul- 
timate decision of these cases and many others, which it will be 
proper to discuss and decide before we notice the special facts 
peculiar to each. They are : 

1st. Had the President a right to institute a blockade of ports 
in possession of persons in armed rebellion against the government, 

214 



THE PRIZE CASES 215 

on the principles of International Law, as known and acknowledged 
among civilized States? 

2nd. Was the property of persons domiciled or residing within 
those States a proper subject of capture on the sea as "enemies' 
property"? 

Mr. Evarts was retained by the Government in the court of 
first instance and in the Supreme Court in the two cases originat- 
ing in New York. The case arising in the United States Circuit 
Court for the District of Massachusetts was conducted on behalf 
of the Government by Richard H. Dana, Jr., then U. S. District 
Attorney for Massachusetts, and involved the sole question of 
"enemies' property." Mr. Dana took a very prominent and 
effective part in the Argument before the Supreme Court, and 
added much to his reputation. The Argument in these cases 
occupied twelve days: February 10 to 13, 16 to 20 and 23 to 25, 
1863, and the decision in favor of the Government's contention was 
rendered on the 10th of the following month. Mr. Evarts filed a 
general brief covering all the cases and made the argument that 
follows. 

ARGUMENT 

FIRST DAY 

May it 'please the Court : x\lthough the importance of the 
questions which have been presented, and properly pre- 
sented, in the argument of this case before this Court can- 
not well be exaggerated, yet I am persuaded that whatever 
noveltv attaches to them is to be found more in the attitude 
of our nation and our government to them than in the prin- 
ciples by which their decision is to be controlled; and the 
deep solicitude which watches the investigation and expects 
your just judgment is due much more to the vital interest 
that we all feel in them than to any difficulty which is to 
attend their solution. For war is no stranger on the theatre 
of human affairs; and whether it comes heralded and with 
acclaim or unbidden and unwelcome, it brings its w^hole 
train with it, and while it remains it is master of the scene. 



216 SPEECHES OF WILLIAM MAXWTLL EVARTS 

War never comes till peace is gone, and peace never returns 
till war is over. They play no parts together on the same 
stage and at the same time. Brief as is the history of our 
own nation — not so long in its duration yet but that those 
who have reached the Homeric fame 

"renowned for justice and for length of years" 

have seen its origin and now may contemplate the menace 
of its end — yet it has had experience of every kind and form 
of war. It came into being through the war of the revolu- 
tion, which was, in its origin, a civil war, and worked itself 
up only on the part of the revolting colonies to a public war 
through the successes of their arms; and never till its close, 
in the recognition by the parent government making our 
nationality wholly legitimate, was it esteemed by the other 
belligerent power as other in its character, or in the leading 
principles which should govern it, than a war of rebellion. 

So too, we, as neutrals, during the long contest growing 
out of the French revolution, stood as witnesses of public 
war, in the attitude specially relevant to the public law gov- 
erning public war, for our attitude as neutrals thus brought 
us in connection with it. 

At the close of the century, in 1798-9, we were involved in 
partial or in perfect war with France, and then learned that 
while it was war, and while, to the extent and purport and 
purpose of its hostilities, it imported the law as well as the 
force of war, yet the national power which limited the extent 
and character and effort of the hostilities, regulated as well, 
by the same measure however and by that alone, the appli- 
cation of the laws of war. 

In 1812, in the open and public war with England, we 
came fully under the jurisdiction of the law of nations in 
its simplest form of absolute, adverse belligerents. 

During the civil commotions which raised the Spanish- 
American colonies into independent states — during their 



THE PRIZE CASES 217 

war of independence, civil and public on one side or on the 
other — we, as neutrals, had our part to play, and most 
usefully we took the lead in establishing the principles and 
according to them the practical results which should gov- 
ern such a contest as that. 

In the war with Mexico, a war in self-defence, if you please, 
turned, as the Romans turned their wars of self-defence, into 
conquest, this Court had occasion to expound, to instruct 
the people, and to establish for the guidance of the future 
the principles which can govern a constitutional govern- 
ment and the application of all the powers of war — not- 
withstanding, a constitutional rule for its still proceeding 
into the domain of conquest. 

And now we have the present war in which we occupy, in 
some sort at least, — to the apprehension of ourselves, per- 
haps, somewhat less than in the impartial observation of 
neutral nations — the attitude which Great Britain held to 
our struggle for independence, which Spain held to her 
revolted or warring colonies. It is true, in both of those 
contests there was present a marked fact, forming a leading 
feature of each of these transactions, which we miss here. 
The wide intervention of the ocean separating the revolting 
colonies, in one case and the other, from the parent country, 
and the separate and independent development under which 
the colonies in revolt had grown up, gave to those great 
transactions more the form of that struggle in the womb of 
the parent nation and that separation of the offspring of 
the mother which seemed a natural birth of a nation in prog- 
ress of time. But, in this war, no such similes of hope and 
promise attend the contest. It is all of partition of a united 
people. It is a dismemberment of mutilation and of ruin. 
And though we thus find that the terrible traits and conse- 
quences of purely intestine war seem more brought home to 
us in this controversy than in the Spanish-American instance, 
or in the history of our own revolution, yet we shall find that, 



218 SPEECHES OF WTLLIAM MAX^VELL EVARTS 

after all, so far as those traits and features are concerned 
that are to affect our estimate of the character of the con- 
flict — the fact of the confederated form of our government, 
the distribution of powers in the general and among the State 
governments, giving to the effort and front of war, without 
its legality of political tie and alliance, nevertheless, the form 
of organized comnumities struggling as if an existing or 
nascent state against the i:)arent government — all this, if the 
Court j)lease, should satisfy us that the situation, full as it 
is of public and of private griefs, for the first time to us, is, 
however, a situation not novel or unfurnished with guidance 
in the historv of the world. AVe mav know and feel that the 
instruction in the law of war which this nation has gained 
through those experiences are to serve for its rules now; for 
we know: "AVc erit alia lex Romae alia Athenis, alia nunc, 
alia posihac, sed ad omnes gentes, et omni teinpore, una lex; 
et sempiterna et immutablis continebit.'' 

The law which we are to administer is not different from 
that which is to be administered in the courts of London and 
in the courts of Paris. It is not other than was administered 
at the period of our own revolution, or during the struggle 
of the Spanish-American states. But, furnishing its pure, 
its everlasting and unchangeable rules, we are to bring the 
facts of our situation for its entire and perfect judgment. 

Now, if this public and universal law of nations is to be the 
guide of the determinations of this Court, is there anything 
in the fact that this Court sits under a constitutional gov- 
ernment and derives its power and authority through a 
constitutional government, ruled over by the organic law, 
that makes its administration other and different, more 
limited or more confined, than the simplicity of the law of 
nations dictates in all such situations? Why, certainly not. 
This Court sits here, in its full Bench precisely in the same 
jurisdiction as the Prize Court. 

The Prize Court derives its authority from the federal 



THE PRIZE CASES 219 

Constitution, by, for which, and to whose use, it is imparted. 
That authority is imparted that it may sit as a court, created 
and exercising the municipal law of the country that created 
it, and existing for the exposition and administration of the 
public law, the law of nations; and when this principle has 
been furnished by our constitution and our laws for the juris- 
prudence and judicature of the Prize Court, that is all that 
is furnished it. It has introduced it to the law that is to 
govern it, as is well expressed, in a somewhat similar situation 
of laws, in the administration of the judicature of a court, 
by the celebrated Sir Wm. Scott, sitting in the Consistory 
Court, in the great case of Dalrymple and Dalrymple, which 
was to test the authenticity of a Scotch marriage: 

"As the case is considered in an English court, it must be 
determined by the principles of English law, that are appli- 
cable to such a case. But the only principle of English law 
furnished for the case is that the validity of the marriage rites 
in the case must be determined according to the principles — 
if the rites existed at all — of that country where the marriage 
had its origin. Having furnished this principle, the law of 
England retires from the discussion and leaves to the exclu- 
sive judgment of the law of Scotland the decision of the case." 

Now, if the Court please, before asking attention to the 
particular considerations which may be necessary before 
the determining of the case in argument as in decision, it 
behooves us first to look at the situation, at the absolute, 
incontrovertible, predominating facts which introduce this 
subject of discussion. My learned friend, Mr. Lord, with 
much weight and solemnity, has referred to the difficulty, 
to the impossibility, of changing a past fact or a past state 
of facts. He has even ventured to say, reverentially, that 
omnipotent power could not find that within its scope. Let 
me ask my learned friend and the judgment of your Honors, 
whether there is not the same difficulty in changing exist- 
ing facts or, by theories or contrivances of law, obliterating, 



220 SPEECHES OF WILLIAM MAXWELL EVARTS 

obscuring, or defeating them. Is not a present fact, is not 
a present state of facts, as stubborn, as uncontrollable by the 
will of law-makers and of law-givers, as a past state of facts? 

Now the situation so very well opened to your Honors by 
the various counsel on the one side or on the other who have 
addressed you, comes substantially to this. The govern- 
ment of the United States by its constitution and its laws, 
having rightful authority over the whole territory of the 
Union and over all its population, finds itself, at the middle 
of April, 1861, confronted by this situation of affairs: Polit- 
ical discontents, civil dissension, civil revolts, civil treasons, 
had occupied and controlled a territory which had for its 
division a line across the land from the mouth of the Chesa- 
peake to the waters of the Missouri River; and this partition 
or division, held under not the least authority or pretence of 
authority of legislation, as proceeding from or consistent 
with the maintenance of the government of the United 
States, was protected and defended by the power of the pop- 
ulation which inhabited it. For its other boundaries it had 
the wide reach of the sea coast, from the same point of de- 
parture, the mouth of the Chesapeake to the mouth of the 
Rio Grande, taking in the Atlantic and Gulf coasts. 

This revolt, so far accomplished as, in fact, to have ex- 
cluded all the peaceful authority of the government of the 
United States, there was no Court, no Judge, no marshall, 
no prosecuting ojQBcers, no jury grand or petit, that could 
exercise in any form or to any degree, the peaceful authority 
of the government of the United States within that entire 
region. There was no secondary reinforcement by the means 
of civil and peaceful authority, that in any part of that ter- 
ritory or for any part of that people could be brought to 
support the peaceful authority of the government. There 
was no power of any county, no power of any district that 
maintained the authority of the United States government 
or would have obeyed the call of its civil magistracy. 



THE PRIZE CASES 221 

Now, without giving, at present, the least attention or 
effect to the political, the legislative, the magisterial pro- 
ceedings of that population, or on this theatre, that had been 
adopted, and were in prosecution, we look at it as a simple 
fact, stubborn, irresistible, uncontrollable, that this was so. 

But this community, thus extensive in its occupation of 
territory, thus numerous in its population, was also a commu- 
nity, like that of the rest of this favored nation, advanced 
in all the proficiencies of civilization and closely connected 
in the most powerful relations of international communica- 
tion by the paths of peaceful commerce. It held within its 
possession immense staples, the object of desire of all the 
world, for which commerce, now as heretofore, was ready 
to venture all and more than all its peaceful risks. It was in 
the condition, from the very shape and form in which its 
peaceful commerce was developed, of needing from all the 
rest of the world, in exchange for those great staples, what 
went to supply the demands of a peaceful people, and, still 
more emphatically, of a power which was to undertake and 
to prosecute a war. 

Now, in that condition, if the Court please, the Govern- 
ment of the United States could not find support in theory, 
in legislation, or in peace. It was no defect of our laws, 
either in their vigor, or in their scope, or in their multitude, 
that our authority was not maintained in this region and 
over this people. It was not that the magistracy, from the 
President down to the marshalls was not as vigorous, as use- 
ful and as powerful as peaceful magistracy can be or ever was. 
It was not that against resistance, tumult, and disturbance 
that fell within the range of riot or emeute, this government 
was not powerful enough in its civil magistracy or in the 
power of the loyal people who were ever ready to attend its 
call. But the whole fact was this — that peace was sup- 
pressed, magistracy excluded, authority derided and tram- 
pled under foot, and by mere power of war. 



222 SPEECHES OF WTLLUM MAXWELL EVARTS 

Now the Government was to meet this situation. How 
was it to meet it? There was no defect in its legislation. 
There was no defect in the distribution of executive power 
and authority — not the least. There was no difficulty, no 
failure, no inadequacy, if it could be dealt with by municipal 
law and through the municipal power. But the difficulty 
is that although, as our learned friend, Mr. Edwards, said, 
domestic trouble is under municipal law, in theory, yet when, 
in fact, it rises above municipal law, the statute book will 
not execute itself, and there is nothing else to execute it in 
the power of a government in its peaceful administration. 

The Government must surely then meet this situation. 
It could despair, fold its hands, betray its trust, and sur- 
render the dignity, the power, the fame, the inheritance 
and the hopes of this people, to a rebellion that is thus suc- 
cessful. Whether the Government should do that rests in 
the breasts of the people, in their ])rimary capacity or in the 
representative majesiatis, the Congress, to which they have 
entrusted the national power. But if you pass this point, 
that the rebellion is not yielded to, the Government not 
overthro\Mi, then I submit that I go into no loose generali- 
ties, hang on no uncertain theories, rest on no legal vagaries, 
when I say that the Government is to be guided and con- 
trolled in what it does, by the facts that are before it. For 
if our learned friends or any of those who are to sit in judg- 
ment on the legal rights and powers of the Government in 
this situation, had been called into its responsible counsels, 
when the moment of action had come, and the moment of 
useful action was fast passing away, I take it that, if they 
had resolved to meet the rebellion and to suppress it by the 
power of the Government, there could be no more simple and 
unanswerable proposition than that they should meet it 
with appropriate means — not by means that might have 
been, or that had been appropriate to other situations in the 
affairs of this world, or to other situations in the history of 



THE PRIZE CASES 223 

our own Government, but by means that were appropriate 
to the actual front and power, and threat of force in war, 
that were moved against the Government, and having, by 
that necessary reason, adopted appropriate means, it seems 
but the next step in the plain sense of the transaction. For 
as well settle at once into the despairing surrender of the 
power of the Government, as to find ourselves limited by the 
Constitution, by any law of human conduct or by any pre- 
tence of constraint, to means that were inappropriate and 
inadequate. Who will advise to apply inappropriate and in- 
adequate means .5^ Who will advise that there is any other 
instruction or control as to what is suitable and appropriate, 
what is adequate and effectual, except a wise and prudent 
and dispassionate— I agree — estimate, but still an estimate, 
of the mien and port, the proportions and dimensions, the 
efforts and the plans, the resources, the alliances, the con- 
nection, the revenues, the supplies, which this rebellion 
counts among its appropriate and its adequate means to 
overthrow the Government.? 

Our learned friends have made a strange reversal of a 
maxim as universal as human nature, and as permanent as 
the world's history or future — "necessity knows no law." 
But I hold that law, constitutional law, the law of a free 
people, knows no stress and no necessity. This is an agree- 
able, as, fortunately for us, hitherto it has been a practically 
true view of the situation of our affairs. But if, when the 
stress and necessity come upon us, our freedom from those 
constraints has enervated, not the physical power of the 
people and its resources for war, but has absolutely enervated 
and overthrown the primary counsels and wisdom, out of 
which alone safety can grow to the republic, then indeed 
have we fallen a final victim to that imputed vice of free 
republics, which separates debate from action, resolve from 
execution, wisdom from power. 

Now, he who shall overlook, in dealing with this rebellion, 



224 SPEECHES OF WILLIAM IMAXWTLL EVARTS 

the facts concerning its line of coast, its foreign commerce, its 
great prizes to external commerce seeking its ports, its great 
needs, its great needs for internal commerce to supply its 
war, would, in the judgment of all wise forecast, and in the 
retrospect of history, be condemned as one who overlooked 
the first and most approi)riate means and object for the appli- 
cation of the national power, and that which promised the 
most of adequacy and effect. 

But it does arise in a different form, in respect to a differ- 
ent subject, and on a diverse exercise of the power of war — 
maritime capture, either in the sense of enemy property, 
as subject to it, or for breach of blockade, or cargo of con- 
traband goods. 

Now, your Honors will perceive that in all the cases that I 
have proposed on which the question might arise in the 
operations of our forces on land, the complainant either in 
criminal or in civil courts, must have been a loyal citizen of 
the United States defying in every way the j)ower and en- 
treaties of the persuaders to rebellion, and must therefore 
be within all the principles of the parental obligation of the 
Government to him and of the protection of the existing 
legislation of the country, and of its administration of jus- 
tice in the courts, that have been invoked for these claim- 
ants in these prize cases. And then your Honors would have 
had occasion to calculate how any court of common law or 
equity jurisprudence should have interfered with or ob- 
structed the direct application of the power of the Govern- 
ment in the form of war. But it is presented, as I have said, 
in the form of prize judicature, and it is said that there is 
wanting that necessary support and element of municipal 
legislation and of authority, yea even in the law of nations, 
to bring maritime capture and prize of war, moved against 
the property, in trade, of loyal citizens within the region of 
rebellion, under sentence and condemnation in a prize court. 

What are the general propositions on this subject needing 



THE PRIZE CASES 225 

to be contended for on one side or the other, and which, 
with greater or less directness, have been presented to your 
Honors? On the part of the Government it seems to me that 
the correct statement may be very briefly this: That when 
insurrection or rebelHon has escaped the control of all the 
means open to the peaceful administration of Government, 
then Government may apply all the means of warlike force 
for the reduction of the power of rebellion, against per- 
sons, against territory, and against trade, which it may find 
appropriate and adequate to the end in view, and which 
under the law of nations governing all contests of force which 
come to the magnitude, and use the methods, of war, are 
allowable in public war. 

Now, that the law of nations does govern all contests of 
force that come to the magnitude and use the methods of 
war, has not been controverted on any settled authority of a 
publicist or well-adjudicated case in the courts of the civil- 
ized nations. The question is, of peace or war. The whole 
division of the subject of public jurisprudence among nations 
is between these two conditions — that public law recognizing 
no other. I refer to Grotius, De Jure Belli et Pads. Sir 
James Mackintosh says that "the province of the law of 
nations is to modify the intercourse between common- 
wealths in time of peace and to limit their hostilities in war. 
It has no other function in respect of hostilities, but to 
limit, to assuage, to rob them of their offences of cruelty 
and military force. But it does not detract, or attempt to 
detract, one atom from the weight and momentum of their 
eflBcacy." This being, then, the general proposition of the 
right of a nation to applj^ its means and resources, appro- 
priately and adequately, against persons, against territory 
and against trade, the next general proposition is, that the 
prize judicature has in it no quality of mulct or penalty, or 
of punitive or retributive justice, but attends the forcible 
capture wholly on motives and for purposes of confining such 

17 



226 SPEECHES OF WILLIAM MAXWELL EVARTS 

forcible captures pursued on the liigh seas to the recognized 
and allowed obligations of such forcible captures and of 
protecting all other property and interests therefrom. We 
claim that the right of force against the enemy's trade is as 
much within the competency of a government, exercising 
power to suppress a rebellion, as its application direct against 
persons, or by overrunning territory. And we claim that 
it is a pure misconception to attribute to the prize jurisdic- 
tion that quality of fine, of penalty, of i)unishment, and of 
retribution, which enters into judgment on the conduct of 
the adverse party in a war. 

If these two propositions be sound, it will be found that 
all that is urged against this authority of the Government 
against trade, and this particular form of enforcing its 
authority in the trammels of the laws of nations, fail en- 
tirely in their application and in their effect. 

Now, the propositions on the other side, as presented and 
urged with such various form and with so much effect by 
the learned counsel who spoke last on the part of the claim- 
ants in this case, my friend Mr. Lord, are, I think, to be 
properly presented thus. And that is why argument will 
be found to turn upon, and constantly recur to, one or the 
other of these ideas, for its entire support. He claims that 
the situation discloses a treasonous war against the Gov- 
ernment, which is a personal war, and not a territorial war; 
that the Government proceeds only against personal delin- 
quents and not on any attribution of hostility to residence 
or incorporation in any community or region drawn into 
hostilities. And, secondly, that this special character of 
war, whatever direct application of force and weight of 
adverse war on the part of the Government it may support, 
draws to itself none of the judicial inquisitions and sentences 
which come in as the law of full war. And he attributes to 
the prize jurisdiction and to the prize sentence, that quality 
of inquisition into, and punishment for fault or guilt. 



THE PRIZE CASES 227 

The propositions of our learned friends from Boston who 
maintain the case of the claimants, as drawn from the oral 
arguments and from the printed brief, are, it seems to me, 
fairly stated thus: I quote now from the brief itself: 

"Undoubtedly the Government has belligerent rights 
against its rebellious subjects, but they are confined to its 
subjects actually in rebellion and cannot be exacted by 
confiscation so as to create forfeiture of the goods of inhab- 
itants merely of territory held by rebels, without some posi- 
tive legal enactment. 2d. Judgment in a Court of Prize 
must follow and rest upon acts and declarations of the Ex- 
ecutive, which themselves must be passed upon and sup- 
ported by Acts of Congress, or directly upon Acts of Con- 
gress, as the support of the Judgment of the Court." 

Then it is claimed that the action of the Executive under 
laws for the suppression of the rebellion does not create the 
status of war followed by the secondary or legal conse- 
quences, — as it is called throughout the controversy — of the 
prize jurisdiction. 

Then, that the acts of Congress subsequently passed are 
to be construed as declaratory of the original relations of 
persons and property to the Government — in which we, of 
course, cordially agree. And they insist that they show — 
that is, these later acts of Congress — not the result of con- 
fiscation for residence, but the contrary — that the visitation 
of law is wholly on those in rebellion actively and who 
are guilty of treason. 

"5th. That these subsequent Acts of Congress give con- 
struction to the proclamations and show the exact status 
to be, that loyal citizens, retaining their residence within 
the region of rebellion, are not enemies but citizens, entitled 
to protection and not to confiscation." 

And they then allege as a general conclusion, and on ad- 
judications and text writers that, "no case can be shown in a 
civil war where confiscation has been made from mere resi- 
dence, but from some special decree of Government." 



228 SPEECHES OF \MLLL\M MAXWTLL EVARTS 

Now, if the Court please, however novel and interesting 
these primary considerations of this situation and its con- 
sequences between a Government and rebellious subjects 
may have been when the first ])rize court was opened and 
when the exercise of this belligerent authority of the Gov- 
ernment of the United States made its first captures, it 
seems to us that, in resolving what the laws of nations are 
and what the rights of Governments thro\Mi into this pre- 
dicament are, under the public law of the world and toward 
the nations of the earth, there is some aid to the argument to 
be found in the fact that, inspecting the question under the 
strongest interest that can ever influence foreign nations 
not to treat this as a war or allow it to be treated as a war, 
every maritime power, every great nation, every civilized 
commimity, that is dravNTi within the folds of commercial or 
friendly intercourse with this country, has pronounced it a 
war on the first intelligent examination of it and has sur- 
rendered all its rights, all the rights of its subjects, bowing to 
the overwhelming fact of war and its irresistible, indisput- 
able law-making power. 

Now, supposing it stood here; supposing it stood merely on 
the public history of these transactions, as it is to be collected 
from the political action of the civilized, commercial, mari- 
time nations of the world, supposing that in the final winding 
up of these transactions, either by the re-establishment of 
the authority of the Government and the suppression of the 
rebellion, or in any measure or degree of its — the rebellion's — 
success, the history is closed, and is to form an example for 
the future, as an exemplar authority in international law — 
who shall say that it is not a decree pronounced on the clear- 
est evidence of fact, and the most solemn and authoritative 
judgment, that this is war, and gives international rights of 
war toward neutrals, and gives authority of war between 
the opposing forces that contend on the one side and the 
other in the struggle of civilized communities, whose forces 



THE PRIZE CASES 229 

are the whole strength and resources of the respective popu- 
lations, the whole energy and power of their respective inter- 
national, commercial relations? 

What, if the Court please, is this system of the law of 
nations that adapts itself to, and controls such situations? 
It is "the voluntary law of nations." Such is the phrase of 
the books. Such is the nature of the authoritv — for there 
is no power compelling the assent or action of nations. It 
is the voluntary law of nations. It is under the voluntary 
law of nations that we claim to exercise the right, and that 
neutrals should submit to it. It is under that great law of 
nations that, if at all, they do submit to it. And if their 
present voluntary conduct be not a confirmation and support 
of those principles, as aforetime existing and forming a part 
of the law of nations, and if this stood as a new and original 
consent, it would introduce and establish a part of the vol- 
untary law of nations, that could not fail to be respected in 
the future. 

So, too, when we come with great respect to the authority 
of this Court, we seem to find some support to the argument, 
that may turn the balance and burden on the claimants here, 
in the fact that every prize court in the nation has found in 
the law of nations, has found in the situation of facts which 
introduced the controlling authority of the law of nations, 
the necessary, the invincible requirement to sustain the prize 
judicature as within the competency of the Government. 
Their learned opinions, pronounced independently, reasoned 
on their own vigor, and supported by as comprehensive 
research as is needed for the elucidation of the subject, are, 
or will be, all before your Honors. 

In the third proposition, which I have not seen success- 
fully contested, that no authority of prize law, no authority 
among accredited writers on the law of nations, has ever 
pretended to say that a situation, arising between the two 
parts of a nation, whether it divided it into mere factions, or 



«S0 SPEECHES OF WILLLIM MAX^\TLL EVARTS 

whether the parental government maintained its authority 
and fought against traitors, cannot, if the facts brought 
it to that head and necessity, not only support, but compel, 
the introduction of the laws of war in all their force and 
authority, I mean to saj' that the enlightened, advanced, 
humane, principles of the law of nations will not permit war 
to exist in that brute and violent force, without the impor- 
tation of the moderating, controlling, restrictive, assuag- 
ing, influences of the laws of war. Even those foreign au- 
thorities that have been introduced, and in part transcribed 
on the briefs of our learned adversaries — the most favorable 
to them that their researches could furnish, and quite re- 
mote from the usual sources of international law to which we 
are accustomed to apply in our courts or in the courts of 
England — contain no limitation that will not introduce, 
when the facts pronounce themselves sufficiently, the ab- 
solute and com])lete authority of the law of nations. Thus, 
in the extract from the civil law, most relied upon in the 
brief in the Boston case, de captivia, it is said, "In civil dis- 
sensions, although often, by that means, the commonwealth 
is exposed to injury, nevertheless the contest does not touch 
the safety, or threaten the destruction, of the republic"; 
and, in such cases, the rule is asserted that the change from 
freedom into slavery is not accomplished by seizures in such 
a war. Without discussing or presenting what is apparent 
to observation, the entire difference that exists on this mat- 
ter of personal freedom, from the consequences of destruction 
of the power and strength of the enemy by the direct ap- 
plication of war to its trade, it will be apparent that the 
whole limitation there rests on the fact that the civil dis- 
sension is within the limit of effecting injury — as by the ex- 
istence of strife every community is injured — but has in it 
no threat of destruction to the public constitution — the 
commonwealth itself. So, too, Hefter, quoted here, says, 
"The state of war legally exists between such parties only 



THE PRIZE CASES 231 

as are entitled to exercise the extreme rights of self-defence, 
and therefore it can only take place between parties entirely 
free and independent of each other, and who are not subject 
to a superior jurisdiction common to both. Such is a war 
between sovereign states, or against individuals belonging 
to no state — such, for instance, as freebooters, filibusters, 
pirates and the like. An internal war between political 
factions can, at best, claim legality as a matter of necessity; 
and it can never give rise to a regular state of war such as 
may exist between states foreign to each other." 

Now, this writer, theorizing on the possible situations in 
human affairs, necessarily concedes that legality of war must 
come in by necessity, as soon as the necessity arises. We 
agree that the legality of war comes in upon a necessity, 
which absolutely overthrows the peaceful authority of the 
Government, closes its courts, and banishes peace; and then, 
as I have attempted once to show, there is but one of two 
choices open to the state — one to yield its life to the attack 
made upon it, one to defend itself by such power and re- 
sources as it possesses. 

So your Honors will find that these remote theories of these 
writers do not attempt the absurdity of saying that they 
will control, or that any written authority of law has con- 
trolled, or can control, the submission of all things human to 
a necessity which overpowers. 

Now, the topics in their due subordination which seem 
to need discussion, I humbly suggest to the Court are these: 

1st. Of the powers of the Government in the suppression 
of rebellion. 

2nd. Of the department of the Government in which 
these powers are lodged. 

3rd. Of the measure and sense in which these powers 
have been exercised. 

4th. The mode and form, in their legal nature and effect, 
in which the property now in judgment became involved in 
their grasp. 



232 SPEECHES OF ^\TLLIAM 1VL\X\\'ELL EVARTS 

And then the lawfulness of the captures and the validity 
of the sentence in prize. 

This brings me, if the Court please, to the consideration 
of the first proposition in my printed brief, page 2'2. 

"The situation in which these vessels and cargoes are 
found, as presented to the Court is, that they were seized 
at the dates of the 17th and 20th of May, about the -^Oth 
of June, and 10th of July, in all cases by ])ublic armed vessels 
of the United States Government, brought into port, de- 
livered to the prize Judges, libelled in prize by the District 
Attornevs, condenmation demanded in the name of the 
Government as prize of war, adjudication had, sentence 
passed; and from the sentence of condemnation, the appeal 
has been taken." 

Now, I relieve at once this argument from what has formed 
so large a part of the effort, with zeal and great ability 
pressed, of our learned opponents, to argue that this Gov- 
ernment cannot, in the situation disclosed, by its executive 
power, either legislate into existence crimes, and apply to 
them penalties and confiscations, or try a case of personal 
fault and delinquency — that it cannot subject to attainder, 
and, by consequence, that it cannot overthrow the rights of 
property by a blow, and that these sentences and these pro- 
cedures cannot be defended on any such principle or sup- 
port. For we agree that there is not the least quality of 
municipal or statutory offence in the conduct of these ves- 
sels or of their cargoes, nor of municipal or statutory for- 
feiture in the procedure for their condemnation. 

We do not oblige our learned friends to argue that such 
things cannot be done, for we admit that they have not been 
done and have not been attempted in these procedures. 
Whether indictment, trial, conviction and sentence, with 
this or that result of personal punishment or fine, can be 
based on anything, on any new relations that have arisen 
in consequence of the war, wherever it may be debatable, 



THE PRIZE CASES 233 

is not debatable here; for the Government has taken no 
such proceeding, and asserts no such right in these causes. 
Nor have their condemnations proceeded at all as an inci- 
dent or as a consequence of any inquisition into the personal 
guilt of any of the owners of the condemned property, as 
being traitors or rebels, or aiders or abettors of treason or 
rebellion. We say openly and distinctly that, as an admin- 
istration or execution of law under the peaceful authority 
of the Government, the whole transaction, from capture to 
sentence, is without any support. It is only in and from a 
state of war, having its own laws, tribunals, processes and 
sanctions, that the offence, the arrest, the Court, the trial, 
and the sentence, have their origin and legal validity. 
And if the status fails, the captures were, undoubtedly, 
open and violent piratical aggressions on peaceful commerce, 
the prize jurisdiction is imaginary, and the sentence in- 
effectual to pass property in the vessel which may be sold 
under it. 

And now, if the Court please, having cleared ourselves of 
the least necessity of maintaining or defending those powers 
of confiscation and of punishment by mere authority of the 
President, or of attaining statutes or procedures that would 
justify them, I proceed to submit to your Honors what I sup- 
pose to be the whole subject of jurisdiction and determina- 
tion in a prize court. I say that, as a matter of its own 
jurisprudence, and its own determination, there is but one 
question before a prize court — and that is, prize or no prize 
— that the existence of the jurisdiction, the openness of the 
Court, rests on the postulate that there is war. Now, wheth- 
er there be war or not is, I agree, a question to be determined 
on principles furnished by the law of nations under which the 
prize court sits. 

The mere fact that a vessel is brought into port and a libel 
filed by the District Attorney does not oblige the prize court 
to open itself to the hearing and administer the law of prize 



234 SPEECHES OF WILLIAM :MAX\VELL EVARTS 

or no prize. But although the deteniiination whether the 
prehminary postulate of war exists to raise the ])rize juris- 
diction, is solely and wholly l\v the recourse of the prize 
court to the action and \oice of the political powers of the 
Government under which it sits, it never was heard of that 
a prize court can erect itself into a jurisdiction to reca])ture 
a vessel that its sovereign had seized in the right of war. 
Never, — but to learn, under the Conunission with which the 
sovereign had entrusted it, whether it was such a capture as 
the sovereign inteniled to nuike. It never was allowed to 
say that there was no war, when the so\ereign said that 
there was. It never was allowed to say that a seizure was 
not made in the intent and under the assumed autliority of 
being by the law of war, when the sovereign said that it was. 
The moment that any such pretence or assertion of authority 
is submitted to, it is made not a court under the Govern- 
ment, but a court over the Government. It is determining 
whether a war exists which the sovereign has declared to 
exist, and is determining whether the sovereign, in a cap- 
ture unmistakably forcible, shall hold his prize, or whether 
the court shall recapture it, and deliver it to the hostile or 
adverse party. 

Now, if the Court please, this proposition does not in the 
least interfere with what we recognize as the familiar and 
necessary jurisdiction of the prize court. The object of the 
prize court is not to give to the sovereign a right to capture. 
The sovereign asserts his right to capture. How does he 
declare his right to capture? If he has declared a war, or if 
he is engaged in a war, he asserts his right to capture all 
property that, according to the laws of war, is affected with 
the quality of enemy property, by its being really in the 
o^Tiership of the hostile party, or by such conduct, breach 
of blockade, or cargo contraband, as exposes neutral prop- 
erty to the same consequences which hang over enemy 
property. 



THE PRIZE CASES 235 

When, therefore, the sovereign brings in his prize, it is a 
concession to that principle of the law of nations, demanded, 
to be sure, and insisted upon by neutral nations as the condi- 
tion of their assent to the exercise of belligerent rights at 
all, on the open sea, and on indiscriminate commerce, — that 
the sovereign is to bring in the property captured and not 
destroy it. It is that it shall be brought in and submitted to 
judicial investigation whether it, the very res before the 
court, comes within the right of the Government prosecuting 
the war under the laws of war. The sovereign cannot seize 
friends' property. All neutral property must submit to 
search, visitation, and to arrest. It cannot resist arrest. 
But when the inquisition is open, then the inquiry is, does 
this very thing, the res before the court, fall within the predic- 
ament whereby the sovereign of the court, prosecuting the 
law of war, may rightfully seize, under the law of nations. 
But, supposing that the sovereign has asserted a principle 
of capture under the law of nations, and has put it in execu- 
tion, what is the duty and what the situation of the prize 
court? Why, manifestly, the duty of the prize court is to 
say and to see, "the sovereign has assumed the responsi- 
bility of this principle of maritime capture as being within 
the authority of the law of nations, and which he insists 
upon. His prize court has no commission to thwart that 
purpose or overrule that confiscation. The sovereign, if 
in fact he has departed from, gone beyond, the rights of the 
law of nations, is responsible in his political capacity to the 
states whose subjects have suffered injury for those offences." 
But if you will introduce into the jurisdiction of a prize court 
this faculty of setting free what the sovereign has announced, 
as his purpose and his construction of right under the law of 
nations, to seize, you at once turn this jurisdiction from its 
pure and simple function — of examining into the circum- 
stances of the seizure, to see whether it is within the asserted 
right of the sovereign — into a power over the sovereign, into 



236 SPEECHES OF \MLLIAM MAXWELL EVARTS 

an ally of the enemy, into an aid against the public and united 
authority of the nation. 

Now, if the Court please, when we have sought in our 
judicature on this question, as ai)plicab!e to the situation in 
which the controversy was between foreign i)arties and we 
were a neutral, it is familiar lore that the question of war or 
no war, as the preliminary postulate to the question of prize 
or no prize, was referred by our courts to our own Govern- 
ment in its political capacity. The political power of this 
Government, when it settles political (juestions, settles 
them under responsil)ility, settles them under reasons of 
state, settles them under reasons of public policy, influenced 
by a thousand considerations which never can come before 
a court of justice; and the courts of the nation have never 
spoken a different voice from their Government on the ques- 
tion of war or no war, whether they are ajii)lying this judg- 
ment to a situation, as in the Spanish-American cases, where 
the conflict is between parts of another nation, or to a public 
war, or to a private war, or to a civil war. A seizure made 
by a Government may be brought into a court of prize 
and yet the prize court reject the jurisdiction. What does 
it look at ? Is the seizure made by the authority of 
the Government.? Yes. Is it made jure belli? If it is 
made jure belli by the sovereign, then we examine to see 
whether he has a right, under the law of nations, as the 
court interprets it, or whether he has asserted a right on his 
own construction of the law of nations, to make the capture. 
But if the sovereign has not made it jure belli, although he 
has made it in fact, if he has made it as a part of a system of 
peace embargo, of arrest as matter of precaution, and pre- 
liminary, then it is not an arrest jure belli, and as the prize 
court has not the least jurisdiction over anything not done 
jure belli, it remits it to its jurisdiction and leaves it under 
the civil constraint to which it was decided to belong. 

Such are the decisions in the cases to which I have re- 



THE PRIZE CASES 237 

ferred, but most distinctly and emphatically when an arrest 
is made at the outset, or in advance of open and publicly 
declared, or fully established hostilities that come up to the 
state of war. When this arrest was made, the undetermined 
and unsettled state of things would have made it unsuitable, 
premature, to declare such an arrest as being jure belli', 
for the fact of the political recognition by the Government of 
war, would not have been made apparent. The arrest, 
however, is made. And subsequently those sparks of col- 
lision have lit up, between the two powers, the flames of war. 
Then this previous arrest is made the basis of a libel as prize 
of war. And then the court, looking back through the 
light of subsequently developed facts which produce an open 
war, says that the arrest was jure belli, in that preliminary 
assertion, not of municipal right, not of peace embargo, but 
as of the outset and initiation of war; and then the condem- 
nation proceeds as prize of war, jure belli, applying the po- 
litical construction and conduct of the Government, after- 
wards appearing efficacious, to the facts as in the time of the 
seizure. 

Now, what is the first argument and what the first test 
on which a prize court would be asked to say that a seizure, 
brought in for its adjudication, was not, in intent and in 
truth, a capture jure belli? If it was brought in by a public 
armed ship of the United States from the open seas, it would, 
on the face of it, seem to be an act of war, and not a municipal 
or peaceful arrest — not to have anything of exchequer in it, 
or confiscation, but prize of war. If, in addition to that, no 
advocate, no argument, could present an alternative power, 
of peace and of municipal authority, under which the arrest 
could, by possibility, have been made, the court would say 
that that arrest — there being no possible support, no pos- 
sible authority of municipal jurisdiction under anj^ existing 
law, or municipal procedure under any existing law whereby 
the arrest had been made — if it were proved to have been 



238 SPEECHES OF >VILLIAM MAXWELL EVARTS 

made by the sovereign authority, and was not a marine tort, 
not a private injury, not a marauder's spoliation, must have 
been made by the sovereign, jure belli. I submit, then, to 
your Honors that the prize jurisdiction, in its original sen- 
tence and at this stage, is limited to the inquiry whether it 
be prize or no prize under the rules of war on a capture 
jure belli. And on the question whether the capture was 
made by the United States of America, jure belli, you are 
only to look to see whether the political authorities of the 
Government made it peacefully or jure belli. If peacefully, 
your jurisdiction is gone, and you surrender it to the peace- 
ful jurisdiction of whatever court may have jurisdiction of it. 
But if you find that the United States of America asserted 
the jus belli and, in the execution of it, made these captures, 
you never can overthrow the political authority of the Gov- 
ernment, and surrender to the enemy what your Govern- 
ment has chosen to seize. 

If, then, the prize court is right in its determination below 
that the capture was made jure belli, was it lawfully made 
jure belli is the question of prize or no prize. And that 
brings me, if your Honors please, to the consideration of 
one of the particular circumstances in the Crenshaw's 
ease. This will be found stated at page 13, and the subse- 
quent parts of my brief. 

Now, what are the principles and usages of the law of 
nations applicable to a state of war and to the assertion of 
jus belli which subject to sentence vessels brought in as 
prize? Halleck, in his book, page 472, referred to on my 
points, has very succinctly and very truly stated the exist- 
ing and established law of nations to be that when two 
powers are at war, they have a right to make prize of the 
ships, goods and effects of each other on the high seas, and 
that that right of capture includes not only Government 
property but also the private property of all citizens and 
subjects of the belligerent powers. That is the asserted 



THE PRIZE CASES 239 

right, the jus belli. If I am right, then we have only to 
consider, in the argument, whether this property comes 
within that predicament. Now, there are various claimants 
here, and there are special circumstances distinguishing the 
predicament of the particular items of property for which 
they press their claims. My learned friend, Mr. Lord, has 
stated what is presented in my second point, that the to- 
bacco shipped by I. and I. H. Caskie presents no question of 
difficulty within the scope of the general inquiry of prize or 
no prize. It is the property of Richmond merchants, es- 
tablished in trade there, and constituting a part of the 
people, and their trade a part of the trade, of the hostile 
region of the rebellion. If the law of prize is applicable, if 
the jus belli has been asserted by our Government and the 
capture made, your Honors will find no diflSculty in con- 
firming this capture by the law of nations, in the sense that 
it was what the sovereignty intended to capture. In re- 
gard to the invoice of Richard Irvin & Co., there are two 
views that may be taken of it — first, whether this invoice 
was wholly the property of Richmond merchants, or whether 
it was held in moiety, in part owTiership or partnership, by 
the Richmond merchants and bj^ Richard Irvin & Co., the 
New York merchants. The statement is wholly contained 
in the answer, which is supposed to be separated as a test 
question of property, and presents a case somewhat of this 
kind: Richard Irvin & Co. having this firm of Clarke & 
Co., resident merchants of Richmond as joint adventurers 
with them in a business consisting of the purchase of tobacco 
in Richmond, and its consignment to Liverpool, to a house 
there representing Richard Irvin & Co., or being their cor- 
respondents for sale, were in the habit of supplying money 
by which the purchases were effected in Richmond, and hav- 
ing the property consigned to their correspondents — the re- 
sults of the sales, the proceeds of the adventures being equally 
divided in matter of profit between the Richmond and New 



240 SPEFXHES OF ^^TTJJAM ]MAX^^'ELL EVARTS 

York firms — Irvin & Co. of course receiving back the amount 
of their advances, and that which stood for profit being 
equally shared. It does not appear at all, in any attirmative 
and definite form, as I respectfully submit (my learned 
friends will correct me if I am in error) that the matter of 
reclamation, in case of loss, was otherwise than the ordinary 
commercial relations of such transactions — to wit, that Ir- 
vin & Co., in case the proceeds of the tobacco failed to re- 
imburse their advances, would have their reclanuition 
against the Richmond purchasers who had been su])plied 
with their funds. If that were so, then, in the contempla- 
tion of a prize court, this tobacco was the property of the 
Richmond merchants, and Irvin & Co. were mere advancers 
having the lien of consignees on the property. 

But, if the other view be taken, that they were joint owners 
of the property — for there is nothing, it seems to me, to in- 
dicate any deposition of exclusive ownership on the part of 
Richard Irvin & Co., — then the shares would be determin- 
able in this wav: The shares of the Richmond merchants 
would present the clean case of enemy property, following 
the fate of Caskie, and the shares of Richard Irvin & Co. 
would fall within the predicament of property of our own 
citizens, loyal and resident in a loyal part of the country, 
but found implicated in the trade of the enemy, and, as we 
say, good prize, by the law of prize, as being thus impli- 
cated. And the condemnation i)roceeded on those grounds. 

Now, my learned friend, in his argument, laid down a 
proposition that a distinction was to be taken in condenma- 
tion of property of our own citizens involved in trade with a 
recognized enemy, whether the property had been purchased 
by our citizens before the war broke out or not. I ask your 
Honors to do me the favor to take a citation under the 3rd 
Point, on the 16th page of my brief. It is the case of the 
St. Lawrence, 1st Gallison, 470. "Property purchased 
before the war equally excluded from trade, and equally 



THE PRIZE CASES 241 

open to condemnation as if it had been purchased after- 
wards." 

These questions are, of course, important and interesting 
just so far as the amount of property involved and the rights 
of private parties are concerned; and under the authorities 
to which your Honors have been referred by my learned 
friends, and the references which I have made, it is but a 
question of the ordinary prize jurisprudence to determine 
whether the predicament in which the share or interest of 
Irvin & Co., if they had any share or interest, is found the 
subject of a condemnation. 

There is another claim here, which is represented by our 
friend Mr. Edwards — the case of Ludlam & Watson, who 
had some interest, joined with Lear & Son in that parcel or 
invoice on board ship. Lear & Son's interest, whatever it 
was, was acquitted, but they have appealed because it was 
acquitted with a charge of costs upon them if they did not 
make further proof. That is to say, they were allowed to 
make further proof. If they accepted that favor of the 
Court and made their case clear, the adjudication would 
have been with costs or without costs, according to the 
merits of the controversy thus made clear. The Court 
said, "I do not acquit you on the evidence. If you make it 
plain that you are entitled to restitution, why, of course, the 
costs go, but if you rest here without undertaking to make it 
plainer, I say that costs shall be charged against you be- 
cause of the obscurity and uncertain situation of the prop- 
erty." Now, that was in the discretion of the prize court, 
and so far as Lear & Son are concerned, the appeal is only 
on that question of costs. They did not take the alternative 
of making their case clear by further proof, and they appeal 
from the sentence on that question of costs. I submit that 
this appeal cannot be sustained. 

Ludlam & Watson have an interest in the same invoice of 
tobacco, which is of very moderate amount; and their re- 

18 



242 SPEECHES OF ^^^LLIAM MAX^\'ELL EVARTS 

lations are of this kind: Ludlani & Watson were a Richmond 
firm of merchants. Watson was a citizen of Virginia and a 
resident there, in the rebellious region. Liidlam, the partner 
of the commercial house domiciliated at Richmond was a 
resident of Rhode Island, thus living in a loyal State. 
The shares of partners being, on the later decisions, to be 
discriminated on a question of condemnation, Ludlam & 
Watson stand, for aught I see, in regard to this ])arcel, in the 
same relative position as Irvin & Co. and Clarke & Co. do to 
the present parcel in which they are interested, provided 
they are joint adventurers, and the whole property is not in 
Clarke & Co. 

I believe, if the Court please, that this is all I need to say 
specially on the circumstances of this case. 

If I be correct in the limit of the duty, the jurisdiction, 
and the jurisprudence of the prize court, the considerations, 
other than those that I have stated, would be limited to 
an inquiry as to whether the political authorities of this 
Government had indicated in such a manner as that the 
prize court must obey those indications, that this was not 
a municipal seizure but was an assertion of the jus belli. 
As, however, the assent of the Court to that proposition is 
not to be assumed, I am obliged to consider the more general 
propositions that this Government, under the law of nations, 
and in the situation in which it was placed, had a right to 
have recourse to the jus belli, as well as that it did, in fact, 
have such recourse. And as the separate treatment of these 
two questions — whether the Government did, in fact, have 
such recourse, and whether it had a right to have such re- 
course — requires an attention, in great part, to the same pub- 
lic facts and the same public documents and laws I shall not 
attempt to separate them otherwise than in this statement. 

Now I have stated, sufficiently for all the purposes of my 
second proposition, the situation of this rebellion toward the 
Government of the United States. The Civil War had al- 



THE PRIZE CASES 243 

ready carried into complete revolt whole states, had organ- 
ized the fomi of a separate and independent government 
which was conducting open military hostilities, with all 
the outward circumstances of public war. I shall not need, 
in my argument, to rely at all on the civil, political, govern- 
mental transactions of the rebellious population in the re- 
bellious region, in any other sense or for any other purpose 
than to show the dimensions, the proportions, the connections 
of the war-making power against the United States. To the 
argument of our learned friends that there is not the least 
touch or quality of legality under the Constitution of the 
United States in what they have done, we, of course, accede 
as, on the primary reason of all things, must appear. But 
they have a power that is engaged in war, and besides its 
array in arms, it has the combination of policy and council; 
for, as Grotius says, "war has its concilium as well as its 
praelium." And this organization, whatever you call it, 
is of the whole people of the whole region, of all its connec- 
tions ad exteros, of all its communications of civilized society 
within itself, making up — for the purposes of this argument 
as for the purpose of various of these citations — an ag- 
gregated power. Well, the national Government met this 
war with its whole military power, land and naval, to defend 
itself from overthrow, to preserve the integrity of its do- 
main and to reduce their power of war. 

Vattel says that "war is the state in which a nation pros- 
ecutes its right by force." The essential idea of war, not in 
any fancy or far-fetched analogy, but in the very nature of 
its destruction of peace and order, is common to nations 
and common to individuals. It is the predominance, while 
it lasts, of force and of nothing but force; and the only laws 
that are imported into it are the laws that regulate or limit 
its force. Now, Grotius says very distinctly on this question 
of war that "there are but two things to be considered by 
those who are about to treat of the rights or the laws of war. 



044 SPEECHES OF A^TLLIAM ALVXWTLL EVARTS 

First, it must be seen what the war is, which forms the sub- 
ject of the inquiry; second, what the law or right to the jus 
of war is, which is the object of the inquiry. Cicero has 
said that war is a contest by force, helium decertandi per vim; 
but the use has obtained that not the action of war, but the 
status, should be called by the name of war." So that war 
is the state of things continuing by force — belli status per 
vim. There is not a touch of law about it. It is a pure 
question of fact, when two independent autiiorities, who can 
be made so by the action of war or by the action of hostile 
force on one side and the other, have a status, and distinc- 
tion from a simple battle, then they are considered in war. 

"These generalities," Grotius ])roceeds, "include all 
kinds of war, concerning which hereafter we shall treat; nor 
indeed do I here exclude private war, as because in itself it 
is prior to i)ublic war, and without doubt has a common 
nature with public war, which on that account leads to the 
ap|)lication of the same term of war to both." 

He says again, in his third chapter, "The first and most 
necessary division of war is, that one war is private, another 
public and another mixed. Public war is that which is 
waged under the authority of one who has jurisdiction; 
private, that which is waged otherwise; mixed, that which 
on one side is public and on the other private." 

This applies to the situation in which this country is 
found, the definitive description of mixed war, waged on one 
side by the party having supreme authority or sovereignty, 
and on the other side by private persons — for I do not at- 
tempt, as I certainly do not find it in the least necessary, to 
impute any other authority to this immense combination of 
rebel citizens of the United States than such as is produced 
by the tie of the common policy and common force as used 
in war. 

Then, of the lawfulness of private war he treats on the 
ground that, by the law of nature, in self-defence it is cer- 
tainly admissible. Now, let us see what public war is. 



THE PRIZE CASES 245 

"Public war is of two kinds, that which is solemn under the 
law of nations, and that which is unsolemn, or less solemn. 
That war shall be solemn public war by the law of nations, 
two things are required; first, that it shall be waged on each 
side by public authorities which have the supreme power in 
the State, and, second, that all the rites and ceremonies of its 
declaration shall be present — of which we shall treat. 
These two things together are required to make a solemn 
public war, so that one without the other, is not sufficient." 
No solemn public war, within this definition of Grotius, 
could exist, however powerful and independent the respective 
belligerents were as sovereigns, if it had lacked the forms of 
ceremonious declaration. "But less solemn war" he con- 
tinues, "or unsolemn war can exist, and be without these 
rites, and be waged against private persons, and have for 
its authority any magistrate." 

So that the distinction which our learned friends have 
been so much disposed to insist upon, that public war, which 
brought the consequences and the secondary laws, as they 
call them, of war, cannot be attributed to the situation in 
which this nation is found, has certainly no support in the 
more authentic repositories of the rules and distinctions on 
this subject. 

Grotius then in his 4th chapter says — and I ask your 
Honors' attention to it, as it forms a staple part of the argu- 
ment of the rights of a nation in self-defence : 

"Wars can be waged both by private persons against 
private persons, as by the traveller against the robber, and 
by those having the supreme authority against those who 
also have supreme authoritj^ as by David against the King 
of the Ammonites, and by private persons against those who 
have the supreme authority, but not over them" (that is, 
by private persons not against the parent government, but 
by private persons against a foreign government), "as by 
Abraham against the King of Babylon and his neighbors. 



246 SPEECHES OF WILLL\M MAXWELL EVARTS 

and by those who have the supreme authority, against pri- 
vate persons, other than subjects, as by David against the 
adherents of Ish-bosheth; or not their subjects, as by the 
Romans against the pirates." 

Now, we may talk about war as much as we please, and 
about what the conditions are, on which a war is perfect, 
imperfect, solemn or unsolemn, and about the distinction 
between war inter gcntfs, and war by the sovereign 
authority against rebellion, and war between ])rivate parties, 
and against pirates, there is one thing which is common to 
them all, there is one thing which makes a discrimination 
between war and peace — and that is, its force. And from 
the instance of the traveller against the robber, up to the 
mightiest powers that have divided the earth's surface 
between them, it is war as and when it is force, and in so far 
as it is force. But when the subject comes up to be dealt 
with in the law of nations and before its tribunals it must 
have, not the mere quality of force, but it must have the 
supersession of all peaceful authority and control, and must 
occupy, in its dimensions and proportions, in its means and 
methods, in its armaments and forces, the character of war, 
as distinguished from private strife. And there is no other 
distinction than that. You may find difficulty in drawing it, 
although, I think, in the world's affairs nothing has been cer- 
tain if it has not been certain when there has been war and 
when there has been peace. Theoretically you must sug- 
gest differences, but there is no other rule of discrimination 
except the inspection of the facts themselves. When the 
peaceful authority of a government is overthrown there may 
be submission on the part of the public authority, or there 
may be a contest for its recoverj^ or a contest for the legit- 
imacv of its overthrow. And that is the situation of our 
affairs, for the peaceful authority of this Government was 
overthro\^Ti in fact on every road of the rebel territory and 
in respect of every resident within it. The rebel contest, 



THE PRIZE CASES 247 

therefore, was to legitimatize that overthrow and to obtain 
a sovereignty that had peaceful authority there. That 
would have brought peace. The contest on our part is to 
suppress the rebellion and restore the legitimate authority 
of the parent Government over the rebellious region, as to 
its territory, over the rebellious citizens, over all the citi- 
zens — for it is equally driven out from rebels and from loyal 
men — and that contest is not under municipal law, nor in the 
nature of things can it be. It is war, and nothing but war. 

Now, this war, as I have said, was between the Govern- 
ment of the United States on the one side, and the people, 
whether communities united or dispersed, who were in the 
rebellious revolt, on the other side. Our learned friends say 
that it was not between the United States and any State 
Government, to which I agree. There is not any posture 
in which the State Government could be recognized (as a 
civil and political body under the Constitution of the United 
States) as at war with the United States. We are at war 
against the total power of war that is moved against us. 
But yet, owing to the divisions of the people into the States 
forming a part of the United States, apparently constituted 
as a part of its political arrangement, and of its political 
power, it has the fonn and appearance of a public war on the 
side of the rebellion as well as on our side. 

This brings me, perhaps, to the distinction which I have 
indicated to your Honors, as lying at the bottom of the argu- 
ment on the part of our learned brothers, between personal 
and territorial war. Now, treason is the crime of those who 
commit it. Unquestionably they are the enemies of the 
Government. They are subject, for their personal guilt, to 
the penalties of criminal law. Whenever our Government 
has authority, when its laws have their course and play, 
then the guilt of these persons is to be, at the will of the 
Government, a matter of judicial inquiry; and then, against 
them, as persons, no procedure of any kind can be had ex- 



248 SPEECHES OF WILLIAM MAXWELL EVARTS 

cept by the authority of the Constitution, according to its 
guarantees, in its constitutional tribunals, ])efore judj^o ami 
jury. We have no controversy on that point. I do not 
know any manner in which this (lovernnient has a ri<,'ht to 
proceed personally against individuals at the South in re- 
spect of crime, or for treason, or for treasonous war, except 
under the Constitution, by indictment, by trial before a 
iurv, bv conviction, bv sentence, bv execution. 'I'lie num- 
her of those criminals makes no (iiM'erence in our rights to- 
wards them, under the peaceful authority of the Govern- 
ment, under nnuiic-ipal law. But the trouble ;d)out the 
matter is that this verv authoritv of law over traitors, and 
for the punishment of trea.son, is overthrown with all the 
other authority of the Government. If our law of treason 
had force and efficacy there, why, our other laws would have 
force and efficacy too. 

If your Honors, in your respective circuits that fall within 
the geographic limits of the rebellion, could sit and try men 
for treason, it is likelv vou would be allowed to sit there and 
try causes between man and man. That is not the favorite 
exception which they would like to make in obeying the 
jurisdiction of the Federal Court. The moment you get to 
the possession of their persons and can punish them as 
crhninals, that moment the war is over, and the tribunals 
have their place and their power. At the outbreak of a 
treasonous war, when it has agitated itself into the inflam- 
mation which, bv our Constitution is necessarv to make it 
treason — the levying of war against the Government of the 
United States, — you may, when it has reached that point, 
pursue it without war. To that I agree. You may send 
your marshal and enough deputies to capture the whole war. 
That is, constitutionally, sufficient to involve men in treason. 
You may call upon all the power of the district, if necessary, 
and it may amount to a hundred thousand men. That may 
be suflBcient to suppress the treason, and seize the traitors. 



THE PRIZE CASES 249 

The court can be, all the while, sitting; and all can be done 
with a marshal and posse comiiatus. That is all very in- 
telligible. But, supposing that the traitors and the trait- 
orous war will not preserve that straitened and feeble condi- 
tion in which municipal law and the peaceful administration 
of Government has its exercise over them — suppose they 
change it from a personal war into a popular war or the war 
of all the people that inhabit the State, or into a territorial 
war or the war of the entire region which constitutes the 
country in which they live, are we to be told that, they 
having turned it into popular war of a people and into ter- 
ritorial war or the war of a territory, against us, we must 
preserve still the notion that it is a personal war on our part, 
and that we have no efficacious and legal penetration through 
the barriers of territorial defences in the pursuit of individual 
traitors, by the power of the Government? Where do my 
learned friends find a right on the part of the Government to 
escape from the bonds of municipal authority and municipal 
obedience on their part and to follow the personal treason- 
ous enemies of the countrv bv war? I do not know where 
it is to be found. I do find a power to suppress a rebellion. 
I find a power to use the army and navy, and the whole 
militia of the United States, that is, to use all the forces 
and powers of war that the country possesses. Is there 
anything left out? Is there anything which belongs to the 
war powers of the Government except its army, its navy, and 
its entire arms-bearing population? Certainly not. I find 
the power to use that to suppress the rebellion; but I do 
not find an injunction that it shall be used in a way that will 
not suppress it and cannot suppress it. I do not find any 
limitation. I do not find that, when you have got the army 
and the navy, and the entire arms-bearing population of the 
country, the Government is so trammeled that it can only 
proceed to hunt up traitors and bring them in for trial. I 
do not find that, when the war, in the name of rebellion, 



250 SPEECHES OF ^^^LLIAM ]\L\XWELL EVARTS 

urged against the Government, is of that extent that it is of 
a people, and of their territory, and of their trade, the 
Government cannot return the war on that people, on their 
territory and on their trade. I do not find that the function 
of war is, in the least, to catch and arrest traitors. It is to 
introduce peace through war. It is that the Constitution 
and the laws of the country may prevail again, and so trait- 
ors may personally be seized and punislied. But the propo- 
sition that we are all, in time of war, executing the powers of 
peace, — while, if the i)owers of peace could be executed, 
there would not be either any justification or any existence 
of war — is confounding the necessary distinctions. War 
gives us no hope or promise, however it arises, except that 
it will restore peace. ^Yhen it is waged, when it is master of 
the theatre on which it is played, peace and })eaceful powers 
are wholly driven out; and only in the train of successful 
and triumphant war, or of unsuccessful and defeated and 
submissive war, does peace ever return. Peace, in and of 
its powers, of its faculties, of its duties, never will bear 
sway over any portion of this territory or this people that 
has raised itself in war against the Government, except so 
far as the power of our war shall have rescued territory and 
people from the power of their war, and restored them to 
the Constitution and the laws, and the jurisdiction and the 
protection of this country — or just so far as their war is 
successful, predominant, triumphant, subversive of our 
power and our Government, shall arise a new municipal 
authority which, in peace, shall execute new laws. 

The charge of his Honor Judge Nelson has been referred 
to on the printed briefs, and, I think, also adverted to in the 
oral arguments, as being supposed to give some counte- 
nance to, or to sustain some inference favorable to, this dis- 
tinction between personal and territorial war, which, as I 
have submitted to the Court, must be determined by the 
question of personal or territorial facts. I am unable to 



THE PRIZE CASES 251 

find in the charge of his Honor, the Judge, to the Grand 
Jury in his circuit, anything that can support this view, in 
any application to the subjects of discussion in the Prize 
Court, and now before this tribunal. In the first place, 
your Honors see that the very attitude of the learned Judge, 
in addressing a charge to a Grand Jury which has inquisition 
of personal crimes, must almost necessarily — must most 
suitably and therefore necessarily — have been limited to 
considerations that had to do with personal guilt; and the 
aspect in which his Honor presented the subject to the jury 
had not the least connection with this matter of whether 
war can be waged against a people and against a territory 
that were incorporated in the adverse war, but was wholly 
as to the municipal legislation in force, and under which sub- 
jects could be brought before grand juries for indictment and 
trial for personal crimes. After presenting the subject of 
treason under two branches of the clause in the Constitu- 
tion, that of levying war and of adhering to the enemy, his 
Honor presents this consideration — and at the very outset 
the Court will perceive that the learned Judge rejects, in 
the very phrase of his address, all these distinctions. 

"The unhappy condition of our country arising out of the 
unnatural struggle of the people of a portion of the Union 
to overthrow their Government." 

Not a portion of the people of the Union, not of individual 
and personal hostilities to the Government, but "the un- 
natural struggle of the people of a portion of the Union to 
overthrow their Government." Now, this at once recog- 
nizes and rests upon the fact that "the unhappy condition 
of our country," no matter how it originated, in treasonous 
resistance and repugnance to the Government, has come to 
be a struggle of the people in their aggregate sense, of a 
territorial portion of the citizens of the United States, for 
the overthrow of their Government. It is not, in fact, of 
the least moment in the estimate, if hostilities arise, what the 



252 SPEECHES OF ^\^LLLA:M ^L\XWELL EVARTS 

original designs or what the actual motives were which have 
grouped together the combatants. AYlienever an entire 
people, in their several means and measures of power, are 
wrought into a unit of hostility, and so thrust and wielded 
and urged against the Government, then the Government 
must oppose it, as a unit of hostility, so thrust, and wielded, 
and urged, or it falls into the folly of using inappropriate 
and inadequate means of supi)ressing a rebellion which would 
be worse than submission. 

Then the tenor of the learned Judge's reasoning — in the 
course of which, passages taken from it are pressed into the 
service of our learned adversaries — is this: In estimating 
what the offence of giving aid and comfort to the enemy is, 
and when it can arise (always a personal offence, triable and 
punishable by law) he starts with the proposition that the 
maintenance of mere personal intercourse, by correspond- 
ence or otherwise, between the citizens of our loyal region 
and the citizens or residents of the territory in revolt, is not 
a common-law offence under the Constitution of the United 
States, and then shows what the rule of the law of nations 
is — which is stated to be that "war interrupts the commerce 
of the hostile nations, the intercourse of every citizen with 
the other," but that in a civil war there is no such necessary 
interruption of mere intercourse between loyal citizens of 
one region and loyal citizens of the other, and that, under 
the law of nations, there is no personal guilt attributable to 
the maintenance of intercourse between the citizens of one 
nation and the citizens of the other, but that the penalty of 
the confiscation, capture, and condemnation of the property 
involved is all that happens, so that no personal crime arises 
even there. By the common law of England it is a misde- 
meanor to hold intercourse with the enemy; but his Honor 
had rejected the common law, in the statement that in fed- 
eral jursidiction there is no common law. Then the point 
was, how far is there an interdiction of communication as 



THE PRIZE CASES 253 

matter of statutory prohibition, and what penalties are an- 
nexed to it; and the act of 1861 is appealed to as the measure 
and extent of the prohibition by the Government of mere 
intercourse harmless and innocent, that is not hostile in in- 
tent to the Government, which would be otherwise permit- 
ted. Then the learned Judge says that under that act the 
only penalties introduced, the only consequences of infrac- 
tion, are the confiscation of the property or the vehicle thus 
involved, and that no personal crime is imputable to mere 
intercourse between loyal people with loyal people, against 
the mere form and effect of that act. But then the learned 
Judge warns the Grand Jury, as representing the criminal 
inspection and inquisition of the community, that if the 
people on this side of the line of hostilities hold communica- 
ti'^n, commercial or otherwise, with the community on the 
other side, with the view and intention of giving information, 
supplies, assistance, in any form, to the rebellion and its 
purposes, they place themselves in the condition, not of 
penalty under the act of 1861, but of penalty under the 
general criminal statutes punishing treason or connection 
with treason. 

Now, I put it to the Court, and I think consonant with the 
sense of the learned Judge who delivered the charge, that 
there is no authority to be derived therefrom in support of 
the sentiment that we are reduced to personal war which 
would be wholly ineffectual, and cannot resort to territorial 
war, which would be and must be the only means of success 
against the rebellion. 

The 4th proposition attributes to the state of war, thus 
existing, and between the parties to it thus described, all 
the powers of public war, including the right of blockade, 
and including the right of maritime capture, as enemy prop- 
erty; and I shall not think it necessary to ask your Honors' 
attention to the authorities collated under that point. 
By reference either to well-recognized general principles or 



254 SPEECHES OF \\'ILLIAM MAXWELL EVARTS 

to leading cases, your Honors' attention has been sufficiently 
drawn to this, I believe, indisputable fact, on authority, 
that whenever the actual condition of a nation prosecuting 
its right by force against another nation or against a rebel- 
lion, exists in fact, the public law of the world insists upon it 
that the laws of war shall intervene, shall regulate, shall 
moderate, shall assuage mere violence of force; and that the 
method and the only method by which, in the apj)lication to 
public, international war, these ameliorations have been in- 
troduced and have been submitted to, in the interest, and 
by the right and power of the belligerents, is, that the laws 
of war, in their secondary coercion on the trade and on the 
status of the warring populations, give efficacy to the power 
of war, while they rob it of its violence, and of its cruelty, 
and of its carnage. So, in civil war, where there is much 
greater reason for the intervention of its humane influences, 
we see it, with equal imj)artiality, introduce its secondary, 
coercive, powerful rights of repression on the rebellious 
region and people, as if it were a community subject to, 
and sensible of, the impressions which the power of war in 
these terms makes. 

SECOND DAY 

I had reached, if the Court please, a consideration de- 
pendent upon, and fonning a part of, the more general 
propositions which I had the honor of submitting to your 
attention, and which had brought me to the oth proposi- 
tion on the 26th page of my brief : That war is essentially, 
and as much as anything in human affairs, a question of 
actualities, is apparent to our reason and is obvious on 
the pages of history. War comes of itself, unwelcome gen- 
erally, unbidden frequently, introduced by no preparation 
of law and no solemn warning. If this be so, it is appar- 
ent that whatever solemnities are wanting, and whatever 
chains, or obstructions, or control the interior structure of 



THE PRIZE CASES 255 

a government seeks to interpose, or does interpose, to its 
rash or capricious introduction, nevertheless if war appears, 
wanting any solemnities, and against and over all these 
checks and obstructions, when it is present, when it main- 
tains position, when peace is driven out, when the laws are 
silent — whether they ought to be silent or not — war rules, 
and gives its own laws. 

Now, the rules and laws of war have no respect whatever 
for the methods, the purposes, the protection, the discrimi- 
nations, the happiness, the prosperity, of peace. All these 
delightful and necessary qualifications of human affairs are 
included in the word "peace," and they have withdrawn 
with it, and are to be restored only in the train of peace. 
And the methods of war, and the laws of war, have no other 
purpose and no other rationale than, by suppressing and 
destroying the opposing war, which is the impediment to 
peace, to restore peace. But it wastes, in civil and disor- 
ganizing efforts to maintain peace during war, none of its 
energies which are applied to the complete restoration of 
peace. A peaceful war will bring back no peace, but one full 
of the elements and future threats of war. The means are 
abundant to secure the end, which never can be secured 
except by the observance of the means. My learned friend, 
Mr. Lord, in his discussion of this subject how war may orig- 
inate and be in possession of the situation, was satisfied to 
hold and declare that even in respect of a foreign nation and 
the introduction of international war, the force of the Con- 
stitution, which entrusts to Congress the duty and the power 
of declaring war, makes it necessary that war, waged against 
us, ad exieros, war denounced or declared against us, ad 
exteros, did not put this nation at war, in the sense that the 
status of its people was changed from their peaceful relations 
abroad and their peaceful relations at home. He rested, or 
arrived necessarily, if not in his own reasoning, yet in the 
course to which he tended, at this: that, in that situation 



256 SPEECHES OF ^^^LLL\M MAX^^TLL EVARTS 

between two nations one may be at war with the other, and 
the other at peace with the first; that the moment of the 
incipient hostihty had changed all the attitude and relations 
of the subjects of that power by the initiation; but that the 
subjects of the other power, in their relations among them- 
selves, and towards the enemy, were left unchanged until 
their ovm. nation intervened. Such a proposition finds as 
little support in the authorities as it does in the necessary 
reason of the matter. Our wars have always been in the 
form, so far as Congress has intervened, of recognition of the 
situation of war as existing. The preamble to the Mexican 
War Act is familiar to us. The act — there being no pre- 
amble — of the war of 1812 is in the same sense and to the 
same effect. It does not take the form of denouncing war 
against England, which is the sense in which "declaring war" 
is used by the publicists and in the Constitution — denunciare 
helium, to declare and denounce war, as the affirmative action 
of the Government so entering on its prosecution. But it 
declares an existing war, using the phrase in the sense of 
ascertainment, promulgation, publication. 

But does not a unilateral declaration of war, which is the 
phrase of the publicists, put the other nation at war.^ I ask 
your Honors to note, on the margin of page 27, a reference 
to the case of the Eliza Ann, 1st Dodson, 247, — a case which 
is on the brief of my learned opponents, but not in this con- 
nection. Sir Wm. Scott says: 

"War mav exist without a declaration on either side. It 
is so laid down bv the best writers on the law of nations. A 
declaration of war by one country only is not a mere chal- 
lenge to be accepted or refused at pleasure by the other. It 
proves the existence of actual hostilities on one side at least, 
and puts the other party also into a state of war, though he 
may, perhaps, think proper to act on the defensive only." 

There is no such thing between nations as one at war with 
the other and the second at peace with the first. And on 



THE PRIZE CASES ^5l 

this very matter of adverse hostility commenced, or war 
denounced, changing the situation of the subjects of the 
other power, without the least intervention of their Govern- 
ment, and from the date and fact of the adverse hostilities, 
without even its communication to the second power, I ask 
your Honors' attention to the case of Oom against Bruce, 12 
East. 225. This was an action to recover back a premium of 
insurance; and the question was whether a state of war 
existed at the time the insurance was effected, so as to render 
the policy void. The case was in a British court, between 
two British subjects. Hostilities had been commenced by 
Russia against England the day before the insurance was 
effected, but it was not known to either party at the time. 
For the defendant it was insisted that nothing which was 
done by Russia, even if it had been known here, would have 
bound British subjects, until the state of war had been known 
and recognized by their government. Lord Ellenborough 
says: 

"The commencement of hostilities by Russia against this 
country placed the two countries in a state of hostilities and 
made the subjects of Russia enemies to the country at the 
time when this insurance was effected. Formal declarations 
of war only make the state of war more notorious, but, 
though more convenient in that respect, are not necessary 
to constitute such a state." 

Now, no distinction can be drawn in the application of 
such a case as this, from any diversity between the British 
Constitution and our own. The British Constitution attrib- 
utes the power of denouncing war to the Crown, ours to the 
Congress. But the Crown of England had as little declared, 
as little accepted, as little known of, acquiesced in, or made 
the nation a party to, the state of war introduced by the 
Russian hostilities, as if it had been attributed to Parliament, 
as it is with us to Congress. 

I have said to the Court that international law, and munic- 

19 



2o8 SPEECHES OF WILLUM MAXWELL EVARTS 

ipal law, as it retires before tlic law of war, contemplate 
alike no divided empire of war and peace. Wl^en war has 
begun, peace is ended; when war is ended, and not till then, 
peace is restored. 'Die maxim, silctit leges inter arma, is not 
so much a sentiment or a jirinciple as it is a fact. Not that 
the laws ought to be silent, not that the laws wish to be 
silent, but that law speaks, when it sj)eaks at all, with a 
potential voice, not of persuasion, not of entreaty, but of 
command; and when its command is taken from it. its voice 
is silent till its command is restored. When the execution 
of the laws is .sought to be put in operation under the peaceful 
power of government and by municipal authority, and it 
finds the culprit against whom its writ is to be executed, 
hedged in by armetl defenders in the array of war, the minis- 
terial municipal ofTicer reports that the process cannot be 
served by reason of this warlike protection and defence to 
the culprit. The Court, then, is silenced for the future; and 
thereupon the appeal is to the Government that peaceful 
administration cannot execute the laws. No feeble, no 
querulous, no undignified attempts to skulk, and penetrate 
by stealth and fraud those lines of war, are attempted; but 
the Government is advised that when the power of war con- 
fronts municipal authority, municipal authority is over- 
thrown, and that there is neither faculty nor strength to 
restore it but by some mode and power commensurate with 
that opposed to it. And that might, and that strength, what- 
ever you may call it, is superior force. Pursuing no laws 
but the laws of force and strength; and that is war. 

The record of the Hebrew Commonwealth furnishes an 
instructive illustration of this necessity — that peace and war 
shall not exist together. The war declaration of the Hebrew 
was: "Beat your plowshares into swords and your pruning 
hooks into spears," and — the war ended — the authoritative 
announcement of peace was: "Beat your sw^ords into plough- 
shares and j'our spears into pruning hooks." These imple- 



THE PRIZE CASES 259 

ments of war and peace are so little needed at the same time 
that the same materials mav serve the nation's turn for 
either state. 

The case of Elphinstone vs. Bedoochet, which is on my 
brief, in 1st Knapp's Privy Council cases, illustrates, by an 
actual decision of the Privy Council of Great Britain, the 
proposition of Lord Coke's familiar statement and of Dr. 
Phillmore's announcement as a principle of the law of nations, 
that either war or peace is the condition in which a nation is; 
and the law, international or municipal, contemplates no 
transitional or intermediate state. AYhenever, therefore, an 
offence, whether it arises for criminal punishment or for civil 
redress, is brought to the cognizance of a court, and the 
situation discloses a controversy of whether it was peace or 
war, the municipal court looks at that question and, if it be 
war, leaves the crime and leaves the personal or civil injury 
to be disposed of by the law and the tribunals of war, or 
recurs to the justice or favor of Government. It never un- 
dertakes to say, there being war, "we will treat of this crime 
or of this injury according as we think the war motives right 
or the war motives criminal." Not in the least. If it be 
peace, then it proceeds against the accused, or in the main- 
tenance of the civil rights according to municipal law, and 
treats it according to the full measure of right and of obli- 
gation under municipal law. 

Now, this case was an action of trover brought against 
Lord Elphinstone and one of his principal military officers 
by an East Indian claimant, for about thirty-six million 
rupees. The court in India gave judgment for the plaintiff 
for 1,700,000 rupees, making the distinction in the amount of 
damages accorded between that part of the property of the 
plaintiff seized by the public military officers who were sued, 
which was his private property, and that which was the 
property of the East India Government, which formed part 
of the capture. The statement of the case in its circum- 



260 SPEECHES OF WILLIAM MAXWELL EVARTS 

stances is somewhat prolix and full of detail; but the note 
sufficiently discloses its main features: 

"The meml)ers of the j)rovisional Government of a re- 
cently conquered country seized the property of a native of 
the conquered country, who had been refused the benefit of 
articles of capitulation of a fortress of which he was Governor, 
but who had been permitted to resitle. under military sur- 
veillance, in his own house in the city, in which the seizure 
was made, and which was at a distance from the scene of 
actual hostilities. Held: That the seizure must be regarded 
in the light of a hostile seizure, and that a nnmicipal court 
has no jurisdiction of the subject." 

Very learned arguments at great length were presented on 
the one side and on the other by the leaders of the British 
bar; and thus briefly is the case disposed of in the Privy 
Council. Lord Tenterden giving its ojMnion. 

"We think the proper character of the transaction was 
that of hostile seizure, if not Jiagr ante, yet, nondam cessatite 
hello, regard being had both to the time, the place, and the 
person; and consequently that the municipal courts have no 
jurisdiction to adjudicate on the subject, but that, if any- 
thing was done amiss, recourse can only be had to the govern- 
ment for redress. We shall therefore recommend it to His 
Majesty to reverse the judgment." 

Now, thus determinately and simply, on no general reason- 
ing or imsupported theory, does a respectable judicature 
deal with this question of peace or war. Lord Stowell says, 
that Russian hostilities, commenced the day before this 
policy of insurance was issued, made a state of war, and 
thereafter, all the laws of private personal relations fell under 
the law of war. So the Privy Council, by Lord Tenterden, 
savs: "nondam cessayite hello this act was done; we have no 
connection with it, for peace is not restored till war is over, 
and the sovereign, not the court, must deal in this transaction 
for the redress of any grievances inflicted, the restitution of 
any rights infringed." 



THE PRIZE CASES 261 

Martial law, if the Court please, which has formed a sub- 
ject of judicial, public, and political discussion in the coun- 
try, growing out of the condition of affairs, has also formed a 
subject of discussion by publicists. It is a local and limited 
application of the law of war, sometimes in your own country 
— and, by that, I mean the country which is loyal and faith- 
ful and supports the Government — sometimes in the enemy's 
country; and under very peculiar circumstances, an intru- 
sion into the neutral territory may occur, overruling the 
law of nations, which does not respect lines of neutrality. 
Now, all this subject of martial law, — most useful for the 
preservation of the law of peace, of the municipal authority, 
and for the protection of the general rights of citizens under 
the Constitution — all this rule, all this law, and all this 
nature of martial law, its rightful and authoritative existence, 
its limit in space and in time, all turn upon this doctrine of 
the actualities of facts which determine war or peace and 
determine martial law or municipal law. General Halleck, 
in his treatise, says: 

"What is called a declaration of martial law, in one's own 
country, is the mere announcement of a fact. It does not, 
and cannot, create that fact. The exigencies which, in any 
particular place, justify the taking of human life without the 
interposition of the civil tribunals, and without authority of 
the civil law, may justify the suspension of the powers of 
such tribunals, and the substitution of martial law. The 
law of war, or at least many of its rules, are merely the result 
of a paramount necessity." 

And General Gushing, in his opinions, to be found in 
volume 8 of the Attorney General's opinions, has this reason- 
ing, which presents the matter very plainly: 

"There may undoubtedly be, and have been, exigencies of 
necessity capable, of themselves, to produce and therefore 
to justify such suspension of all law and invoking, for the 
time, the omnipotence of military power, but such necessity 



262 SPEECHES OF ^^TLLIAM MAX^^'ELL EVARTS 

is not in the range of mere local questions. When martial 
law is proclaimed under circumstances of assumed necessity, 
the proclamation must be regarded as the statement of an 
existing fact rather than the legal creation of that fact. In a 
beleagured city, for instance, the state of siege lawfully exists 
because the city is beleagured, and the proclamation of 
martial law in such case is but notice." 

Now, what martial law is, in its limited sphere and its 
temporary maintenance, that is martial fact. War, in its 
larger feature and its more extensive relation, is fact, made 
fact sometimes by the voluntary, purposed, and premeditated 
activity of a nation through its forms of law; made fact fre- 
quently against such purjjose, certainly against such avowed 
])urpose, but however made, it is limited by fact. 

If the Court please, I have but a single further general 
inference to ask your attention to, growing out of these pro- 
positions. And it is this: That, as the state of war arises 
and exists as a matter of fact against a government, whether 
it wills it or not, whether it has induced it or not, whether it 
wishes that it shall continue and be prosecuted or not, the 
powers and the duties of every government against which 
such a war thus arises, to oppose, overwhelm, and subdue 
the war, whether it be foreign or whether it be domestic, are 
themselves facts having their strength and their dimensions 
altogether measured by the power, the efforts, and the pur- 
poses of the war that is moved against the government and 
the nation. You cannot codify a war that is to be prosecuted 
against you. It recognizes no measure but the strength and 
the purpose of the hostile nation that comes into the conflict. 
And you cannot advance, in any municipal system or in any 
constitutional structure of a nation, any such constraint, any 
such impediment, any such feebleness in its power to oppose 
war as makes it necessarily the victim of a surrender when 
power shall be moved against it in the form of war, outside 
of the limits or bej'ond the strength that the nation is per- 



THE PRIZE CASES 263 

mitted to use against it. No, just as truly, just as necessarily 
as in the case of private war arising between two persons on 
the right of self-defence, just so necessarily, just so truly, 
when war arises between two independent powers, whether 
they be independent political powers or howsoever otherwise 
they come to be adverse warring powers, there is not any 
measure to the right, nor any measure to the facultj'^ of 
either nation as against its enemy, but the strength, the 
power, and the resources of the nation. Its right is to defend 
itself by whatever means are necessary; and the means that 
are necessary are to be governed, of course, by the author- 
ities of the nation, but are to be governed as reasons of state, 
and of policy and of military prudence and military judg- 
ment. It will be found that all arguments that seek to 
reduce or restrain the exercise of the power of a nation in war, 
in which it is engaged either with or against its own will, and 
any effort to reduce the power and authority of a government 
that has been put to the necessity of exerting the powers of 
war, to suppress a rebellion or insurrection or whatever you 
call it — any interior disturbance that has escaped the bounds 
of civil power and needs recourse to the warlike authority 
of the nation — anything that tends to hamper, reduce either 
in the measure of its strength or in the variety of its exercise 
the authority or the duty of the Government to defend itself, 
are contrary to the first reason of the law of self-preservation 
and contrary to every proposition on, and justification of, 
the cause of war. 

The Government, in time of peace, protects itself natur- 
ally and easilj\ The Government, in time of war, can pro- 
tect itself, can sustain itself, only by the means of war. And, 
as Sydney says in his Treatise of Government, "it is impious 
to say that those who oppose the law and, by their strength 
and power, are able to protect themselves from its peaceful 
authority, are to be saved from the use of all the means which 
the nation has, to overcome their resistance. Against such 
all are just." 



264 SPEECHES OF WILLIAM MAXWELL EVARTS 

Now, the Court will perceive that there is nothing in the 
idea that the powers of war are to be executed in order to 
reduce a rebellion to the control of the civil authority, that 
makes the powers of war, thus applied and tending to that 
end, in the least an exercise of numicii)al authority or of 
punishment towards any body or any thing. The punish- 
ments are to come, if af all. when the law that can authorize 
and can support them is renewed. It woulil seem, therefore, 
that if a war arose, before the statute of 1795 was passed or 
before the statute of 1807 was passed, whoever properly 
represented the authority of the nation to execute the ])owers 
of peace and the powers of war— in distinction from enacting 
them — to execute the laws by the means of peaceful author- 
ity or, by the means of war, to reduce under peaceful author- 
ity, — whatever power thus represented the nation must, in 
emergencies and under necessity, be clothed with all author- 
it v which the nation could second and support by its strength. 

But, if the Court please, in the actual circumstances of 
this case, under the Con.stitution of the I'nited States and 
imder the existing legislation of Congress, there is no need 
to resort to these general, though absolutely true propositions 
of the law of self-defence. We are a nation that possesses, as 
matter of fact, all the energies and all the material resources 
which make up a powerful people, powerful in all the rela- 
tions of peaceful influences with other nations, powerful in 
war; and we have a Government that is formed on no prin- 
ciple of feebleness or point lessness in the arrangement of its 
authorities, and in its being the head and leader and ruler of 
so great a nation, formed wisely by those who constructed it, 
on no theory that peace was always to prevail, although they 
desired it. It is fully furnished with all the weapons at once, 
and with all the shields, that belong to the conflicts of war. 
And this was in full exercise, not only in the fundamental 
law of the Constitution, but in all the subordinate legislation 
which needed to proceed from the action of Congress, at the 



THE PRIZE CASES 265 

time this revolt broke out. There was nothing of limit either 
in the Constitution or in the laws that had provided for an 
emergency of a small insurrection, of a small rebellion, of a 
small invasion; but there was, in the department of this 
Government having political authority, a full measure of 
strength and provision for an invasion that should at once 
bring along the Canada line an army of 200,000 men, and 
along the coast an invasive naval power of 500 ships of war. 
So, too, for rebellion, if it should gain the awful front and 
tremendous strength that this did before the war powers of 
the Constitution, under the laws and by the authority of the 
nation were to be levelled at it — so far as the authority of 
law went, there was as great and adequate a provision for a 
rebellion that should seek to maintain itself over half the 
territory of the Union and should press into its service one- 
third of its population. So, too, it was as well prepared, as 
completely provided, against a rebellion that should have a 
sea-coast of that extent and should seek to draw for its sup- 
plies and for its revenues on the commerce of the world. 
Whether the Government had the physical force, had the 
arms-bearing population, had the munitions of war, had the 
armaments bj' land and by sea, that were adequate, were the 
sole questions to be regarded by the political authorities of 
this nation. They did not need to wait an hour. They did 
not need to await support from any other department of the 
Government. The judiciary was not to be consulted at all; 
the Congress, although it was proper that it should be called 
into the councils of the Government at as early a day as 
possible, had yet not left anything deficient, or defective, in 
the arm of the Executive which made it necessary that the 
nation should be rent before Congress could be convened. 

Now, our learned friends do not seem to dispute that there 
was some power in this Government, that there was some 
power to do something that was not, in the least, within the 
range of peaceful authority or within the operation of muni- 



266 SPEECHES OF ^^ILLIAM MAXWELL EVARTS 

cipal control; but they come to the point of division, that the 
Government could do only certain things, that it could not 
do this or could not do that. And yet there is nothing in 
their discrimination between what the President could do 
under existing Acts of Congress, could lawfully require, and 
what he could not lawfully do and could not lawfully re- 
quire, except a discrimination as to what was necessary, 
what was useful, what was proper, what was beneficial, 
toward the end proposed. That single distinction which I 
shall hereafter meet more distinctly, is: That although every 
act of direct force and of inmiediate weight and pressure on 
the rebellion could l)e pursued by the Government, yet any- 
thing that came into judgment, into sentence, into judicial 
inquiry, could not derive its origin and its system of adjudi- 
cation from any acts of the Government without special 
introduction and direction ad hoc of specific legislation of 
Congress. 

Now, I may not have much occasion to quarrel with that 
as an abstract proposition, because I find nothing in the na- 
ture of the prize arrest and the prize adjudication and sen- 
tence which partakes, in the least, of the qualities of subse- 
quent, retributive, punitive justice. It is right that we 
should see, not only what powers the Government had by 
the very nature of its Constitution to defend itself, but also 
understand how these powers were distributed, and no fault is 
rightly found as to the exercise by the Federal Government 
of what was rightly imposed upon it. I have collected under 
my 7th proposition, a reference to the heads of the Constitu- 
tion touching both Congressional and Executive authority 
in this matter of the legal power of the Government. Con- 
gress has power to declare war. And on this our learned 
friends insist, as carrying the extensive consequences of non- 
declaration of war by Congress that they have claimed. 

Now, if your Honors please, will it be contended before 
this Court, has it ever been made a matter of professional 



THE PRIZE CASES 267 

opinion or argument, that this clause giving to Congress 
the right to declare war — that is, to denounce war — had the 
least reference, in the sense of the framers of the Constitu- 
tion, or in the proper interpretation to be given to it, to a 
state of rebellion or civil war? Is it true that this phrase of 
the Constitution that has relation solely to the functions of 
the Federal Government as a representative of the national 
strength ad exteros and that puts in this branch of the Govern- 
ment the power to denounce or declare war, had reference to 
giving to Congress the exclusive control of the question 
whether rebellion or insurrection should be met by the power 
of the Government? Certainly Congress may have control, 
certainly Congress may have authority to this or that extent 
over these internal insurrections or rebellions, however they 
may arise. But no one, it seems to me, can say that under 
the clause of the Constitution which says that Congress may 
declare war, the power of the Government, or the duty of 
the Government, or the resources of the Government for the 
suppression of the rebellion, are to be derived. It is not the 
will of Congress that is to determine whether rebellion shall 
be a war which is to be frowned upon and suppressed. The 
Constitution, bj^ creating the nation, makes rebellion against 
it a crime. Duty may be betrayed. The nation may be 
surrendered, by Congress, by the President, but not in pur- 
suance of the Constitution. 

The other warlike powers are, to raise and support armies, 
provide and maintain an army, make rules for the govern- 
ment of the land and naval forces. And these, indeed, give 
to the National Legislature the complete control of the levy- 
ing, the organizing, the preparation, of the national forces by 
land and by sea. And, as has been made the matter of some 
judicial interpretation, as it is of the necessary sense of the 
clause, these powers to raise armies and navies gave, of 
course, to the Federal Government, bv its Executive or 
Congress, authority to use the army and the navy in the 



568 SPEECHES OF WILLIAM ALVXWELL EVARTS 

fonn of war, and in war, domestic or foreign, as the nature 
of those material forces may indicate. Now, your Honors 
will find that the next clause is the only clause of the Consti- 
tution that has specific relation to any power in Congress in 
the very matter of domestic rebellion and insurrection. 

" 14th. To i)rovide for calling forth the militia to execute 
the laws of the Union, suppress insurrection an<l repel 
invasion." 

Now, if we are to stick on the mere i)hrases of the Consti- 
tution as giving j^ower either to the Executive or to Congress 
in the matter of the suppression of the rebellion, your Honors 
will perceive that there is here a distinct limitation of the 
force and the authority of Congress in the matter of the sup- 
pression of rebellion or the repression of invasion — "provide 
for calling forth the militia to execute the laws of the Union, 
suppress insurrection and repel invasion." But it is not 
necessary to say that such a construction overlooks the fact 
that Congress and the National Government, by its very 
constitution, had control of the national forces — the land and 
naval forces of the Government — for all the purposes of en- 
forcing its authority; and this was simply a provision that 
they should have equal control, in this emergency, of all the 
arms-bearing population of the country, thus taking from 
the States themselves their own organized militia whenever 
the national power was necessary to be exercised either 
towards a foreign nation or in domestic troubles. 

Now, that exhausts, except the provision for organizing 
the militia, when thus introduced into the service of the 
Government, the specific war powers of Congress. How, 
then, is the President made, under this Government, a head 
or leader of its material strength, of the energies of its people, 
and of all its warlike resources.^ Why, in the very constitu- 
tion of his office which says that the executive power of this 
Government, all the executive power of this Government, all 
that power which is execution in distinction from legislation, 



THE PRIZE CASES 269 

and judicial determination, all that there is of a Government 
in its divisions, that does not go to legislation, that does 
not go to judgments of courts — that is all in the President 
of the United States. There cannot be more than that 
lodged in any Chief Magistrate, whether he be called King 
or Caesar, excepting that the Constitution, by its divisions, 
of what it attributes to the legislative authority and what to 
the courts of law, determines and limits, as may be, the 
extent of Executive power. But, that the waging of war, 
the conducting of war, whether it be foreign or domestic, 
the suppression of rebellion, by executing the power of the 
nation, is wholly in the President under the simple authority, 
cannot be denied. Congress cannot carry on the war against 
rebels or the war against foreign nations, and the courts of 
justice do not intervene at all. 

But again: the President, by the solemn induction into his 
office, is charged with every duty, and has awarded to him 
every power contained in the Constitution which is necessary 
to the maintenance and obligation of his oath. His oath is, 
that he will faithfully execute the office of President of the 
United States, and will, to the best of his ability, preserve, 
protect and defend the Constitution of the United States. 
What is meant by the President's undertaking to the best of 
his ability, to preserve, protect and defend the Constitution 
of the United States.'^ It is not the best fidelity to his per- 
sonal duty, or to the best of his personal powers, but that he, 
to the best of his ability with which he is clothed by the 
Constitution, to the best of his application and exercise of 
the public authority with which the Constitution has clothed 
him — and that public authority is the whole Executive power 
of the nation. He is thus made, in form, Commander-in- 
Chief of the x\rmy and Navy and of the Militia, and is obliged 
to see that the laws are faithfully executed. 

Now, if the Court please, let us suppose a case. Suppose 
that an insurrection or rebellion, of such magnitude that it 



270 SPEECHES OF \MLLIAM MAXWELL EVARTS 

threatens the destruction of the republic, arises during the 
recess of Congress, and before the k'gishition of 1795 and 
1807 — is there any power to save the Government, it being 
clear to human intelligence that it must be saved within 
sixty days or destroyed? There is a great national army. 
It has strength enough to suppress the rebellion. There is a 
great navy. It has strength enough to cut off the resources 
and sujiplies of the rebellion, without which it will wither and 
die. There is a great arms-bearing poj)ulation of loyal and 
valiant men in the nation; and there is a President of the 
United States and a Constitution, clothing him with these 
powers. Shall the Government stand or fall,^ That is the 
proposition. It is to stand, by salvation within sixty days; 
or it is to fall, in the ruin to be completed within that time. 
Is the wisdom, is the frame of this Government so established 
that in silence, from respect to law, in reverence bowing 
before the Constitution, the Government, the law, and the 
Constitution are involved in a common ruin? AVill any 
lawver sav this? Will anv Judge sav this? AVill anv states- 
man say this? Will anybody say that, with this loyal army, 
this loyal navy, this loyal arms-bearing poi)ulation, this 
faithful President who has sworn to use all his ability, this 
strong Constitution that has made him commander of all 
this army, this navy, this militia, and the head of all this 
loyal population, the executive authorities of Government 
must, in silence, see the ruin of the whole? Yet, that is the 
proposition. Or if, post hac, a judge or a lawyer can decide 
or argue that the President cannot do this and cannot do 
that, and if ""this" and "that" were all that could save the 
country, then it would follow, from such argument or deci- 
sion, that the fabric is so built that it must be overthrown 
on the happening of such a concurrence of circumstances as 
I have named. 

Now, this proposition may be met. It may be met in the 
councils of the Government. It may be met in the recesses 



THE PRIZE CASES 271 

of the judicial determination. It may be met in the heart 
and in the breast of every citizen — and there is no answer 
but this: that whatever the strength of the nation can do is 
lawful, is in subordination and in obedience to the Consti- 
tution, done under the authority of the President. 

But supposing, if the Court please, that instead of Con- 
gress not being in session, a majority of its members are in- 
volved in the treasonable councils and are well-wishers to 
the rebellion,— what then? Is Congress the sovereign of the 
nation.? Why, the whole theory of our political institutions 
is, that the sovereignty is with the people; and of its sover- 
eignty there is withdrawn, in attribution to state or federal 
authority, only that with which it has parted. We have no 
king given us, the representative of our power, to whom 
we are subject, and within whose power all ours is included. 
No; this is our proposition of sovereignty. And if you do 
not attribute to Congress or to the Executive the acts of 
sovereignty which can save a nation when it needs to be 
saved, then that nation has that act of sovereignty itself, — 
for it must be saved, and, if it be a sovereign, must have a 
right to be saved. 

But, if the Court please, who will say that a rebellion that 
includes a majority of Congress makes the rebellion the law 
and the Constitution and the right, and that the President 
and the power of the country, when it undertakes to main- 
tain the old Constitution, the united territory, the ancient 
nationality, is revolution, and that Congress is the Consti- 
tution, and the permanent, and the pre-existing Govern- 
ment.? That is the very nature of this government of the 
people under the written Constitution. As the people arc 
not sovereign, so Congress is not sovereign. But the Con- 
stitution — that is the sovereign and its law — and whichever 
part— the legislative or the executive — rebels against the 
Constitution, is the rebel; and if it seeks the means of force 
and of arms, it is at war. If the rebellion be made by the 



272 SPEECHES OF WILLIAM ]MAX^^'ELL EVARTS 

President in office, it is a rebellion against the Constitution; 
and if Congress be loyal and faithful, it assumes the powers 
of Government and takes its measures to suppress it. So, 
too, the President. And so, finally, the strength of the 
nation under the lead of its constituted authorities, by its 
flag, and in support of its Constitution, is not unfaithful and 
is not revolutionary, whatever be the form of the rebellion 
against it. 

Now, the general legislation of Congress, exercising its 
powers constitutionally had furnished an army and navy; 
and there was in existence an organized militia when this 
rebellion broke out. And there were also, on the statute 
book, statutes of permanent api)lication and wise prevision 
which had undertaken to make lawful and formal, by the 
concurrence of all the powers of the Government, the author- 
itv given bv the Constitution, that should meet any such 
case. And this brings me to the c(Mvsideration of the act of 
1795. 

Now, if the Court please, lest it should seem that in the 
more general propositions which I have had the honor and 
thought it necessary to submit to the Court, I have trusted 
to my own deductions or to my own views of the simple 
reasons on which it all rests, I have asked the attention of the 
Court, on my brief, to a few simple and conclusive sentences 
from the authoritative pen of Hamilton: 

"The circumstances which endanger the safety of nations 
are infinite; and for this reason, no constitutional shackles 
can wisely be imposed upon the power to which the care of 
it is committed. This power ought to be co-extensive with 
all the possible combinations of such circumstances; and 
ought to be under the direction of the same councils which 
are appointed to preside over the common defence. This is 
one of those truths which, to a correct and unprejudiced 
mind, carries its own evidence along with it; and may be 
obscured, but cannot be made plainer, by argument or reason. 



THE PRIZE CASES 273 

It rests upon axioms as simple as they are universal. The 
means ought to be proportioned to the end; the persons 
from whose agency any end is expected ought to possess the 
means by which it is to be attained." 

I have had occasion, if the Court please, to present no 
more fundamental, no more general propositions than those 
which Hamilton has pronounced so plainly, that "argument 
can only obscure them," and as simple as they are universal. 

Now, the Act of 1795 does not undertake in the least to say 
what strength or head of rebellion or of invasion or of domes- 
tic disturbance in a State shall exist before the authority of 
the Government is to be exercised. As little does it undertake 
to say how much power, or in what form, the Government 
shall bring to bear on either invasion or rebellion. Nor has 
it undertaken to draw any distinction between its purpose 
and the public necessities which may require the application 
of the powers of war in the one case of invasion, more than 
in the other case of rebellion. The authoritative part of the 
law provides that whenever the United States shall be in- 
vaded or be in imminent danger of invasion from any foreign 
nation or Indian tribe — which is every form and every quar- 
ter in and from which invasion can be expected, in all human 
probability — "it shall be lawful for the President of the 
United States to call for such number of the militia of the 
state or states most convenient to the place of danger or 
scene of action as he may deem necessary to repel such in- 
vasion, and to issue his orders for that purpose to such officer 
or officers of the militia as he shall think proper." 

Now, if the Court please, w^hen we take, in connection, 
the statute of 1807, which has arrayed under the authority 
of the President the whole power of the land and naval 
forces proper of the United States, do we not see that the 
case supposed by that statute for the exercise of the powers 
given by it to the President is a case of warP^a case of war, 
threatened or commenced from abroad, in the form of inva- 

20 



274 SPEECHES OF ^\^I.LIA^[ MAXWELL EVARTS 

sion, and that the powers that are given to the President have 
not the least quality of municipal authority? In other 
words, is it not apparent that the case of war coming upon 
the country, and the provision of war to meet it is the case 
and the authority of that statute? Nor is there any limit 
whatever. The country is to give all the militia, all the 
navy, all the anny; and the Executive is to use them as the 
occasion of the conflict or of the danger may require. 

So, too, in the next case: 

"In case of an insurrection in any state against the 
Government thereof, it shall be lawful for the President of 
the United States, on application, etc., to call such number 
of the militia as he may judge sufficient." 

This refers to the case of an insurrection against the 
authority of a State, but, as is adjudicated and as is necessary, 
an insurrection against a State which is entitled to the pro- 
tection, and forms a i)art of the frame of the general Gov^ern- 
ment is an insurrection, in a secondary form, against the 
authority of the Federal Government. Now, here all the 
war power is given — the anny, the navy, and the militia. 
There is no limit. In the State of New York, with its 
population of four millions and in its connections on the 
lakes and on the sea, an insurrection might require not 
only the theoretical power of war, so distinctly noted and 
affirmed by the Chief Justice giving the opinion of the 
court in the case arising in Rhode Island, but might re- 
quire the actual ajiplication, in its fonns of blockade, in 
its forms of all the oppression and suppression, of war be- 
fore it could be reduced. Is there anything in that statute 
that limits the insurrection in New York to being a muni- 
cipal disturbance, under municipal authority? May it not 
have possession of the port of New York and the ports upon 
the lakes, and have control, by usurpation, of the resources 
of the State and of its militia of 400,000 men? And is not 
this a case where, clearly, war is to be pursued? 



THE PRIZE CASES 275 

Then we come to the second section: 

"Whenever the laws of the United States shall be opposed 
or the execution thereof obstructed, in any state by combi- 
nations too powerful to be suppressed by the ordinary course 
of judicial proceedings or by the power vested in the marshal 
by this act, it shall be lawful for the President of the United 
States to use the militia." 

And by the Act of 1807 he can call out the anny and navy. 

Now, is not this a case of war? If it were necessarv to 
find, in formal congressional action, a provision recognizing 
that civil authority and peaceful control of Government 
was gone, and that the power of war should be applied by 
the President, do we not find it in this Act? 

What are the English definitions, what are the definitions 
by the publicists, of a state of war excepting that which is 
very distinctly figured in this statute? that is, when the laws 
cannot be enforced, and the power of the marshal is inade- 
quate to enforce them. What is the power of the marshal? 
It is the entire peace power of the country, that, under its 
Constitution and its laws, is to be brought into action. 
And when the exhaustion of the peace powers of the country 
has occurred, what is there left known to the publicists but 
the war power? 

I say, then, in the 8th proposition that the cases put by 
the statute are a war, the remedies are a war. Under these 
statutes, under the Constitution, and in presence of the 
rebellion such as is kno^n, such as has been stated by my 
learned associates and indicated by myself, this Govern- 
ment came to act. Now, we have left only to see what it 
did do; it being left to the Government, its Executive, in its 
administration of those great authorities given by the Con- 
stitution and this Act of Congress, to determine, beyond the 
subsequent judgment of any court whether it should deter- 
mine right or wrong. (That is well adjudicated.) What 
did the President do? And what are the faults, or what the 



276 SPEECHES OF ^MLLIAM ^L\X^VELL EVARTS 

excesses, imputed to his action, as hearing on inquiries that 
are open in these prize causes? Your Honors will not be 
detained hy any recurrence on my part to the terms of the 
proclamations or of the message of the President. Suffice 
it to say, that on the 15th day of Ai)ril he called forth, as 
I submit to the Court, the war power of the country to sup- 
press this rebellion. 1 have not heard that any fault is 
imputed to that proclamation calling for the 75,000 men. 
If he had called for 750,000. it was in his discretion. On the 
17th of Ai)ril a new movement was made on the part of the 
rebellion. Wliat was that? It raised the threat anil pre- 
l)ared the execution, of the suppression of the commerce of 
the United States. A proclamation for Letters of Marque 
and for Privateers, inviting all who would take commissions 
from the rebel government to prey ujion the commerce of 
the I'nited States was issued. Thus, besides being a per- 
sonal or treasonous war, and besides being a territorial war, 
it was made l>y the rebellion, on the 17th of April, a war 
against the trade of the United States, to drive our commerce 
from the seas and to reduce the resources and supplies of the 
national strength. On the 19th of April, meeting blow by 
blow in direct force, the President of the United States is- 
sued his proclamation of blockade, establishing the naval 
method of war against the rebellion indicated by the neces- 
sities of the Government and its duty to the people. What 
did he mean by it? Did he mean that it was a peace block- 
ade? Did he mean that it was a blockade of obstruction? 
Or did he mean that it was a blockade under the war power 
and within the terms of the law of nations? Did he mean 
that it was to be confined to the forcible exclusion of vessels 
and was to carry none of the sanctions by which a blockade 
is supported under the law of nations? No. He in terms 
directed that "the vessels are to be captured and sent in for 
adjudication as prizes." We had thus an indication not to 
be mistaken, an interpretation not to be withstood, that the 



THE PRIZE CASES 277 

President of the United States did undertake to use the 
force of the country for the suppression of the rebellion in 
its array of armies on land, in its possession of the territory 
of the United States which it had wrested from the power of 
the Government and against its trade as an answer to its 
attack on the trade of the United States. 

Well, now. Congress assembling on the 4th of July, the 
President of the United States informed it that he had called 
on the war power of the Government under the Constitution 
and the laws. We then are able to meet and completely repel 
the suggestion of our learned friends that though the Presi- 
dent might have done, yet he has not in fact done, such 
acts as entitle us to claim that the war power of the Govern- 
ment has been exerted for the suppression of this rebellion. 
In its nature it is sufficient, but in the intent of the proclama- 
tion, in the message to Congress, and in all the action of the 
Executive, it is very apparent that he exerted this power. 

But, if the Court please. Congress came together, and it 
did pass certain acts. Every one of these captures was made 
before the passage of any Act by Congress at all touching the 
condition of the country. But Congress did pass certain 
Acts, and 1 think there is some diversity of opinion and state- 
ment between our learned friends as to what the effect of 
those acts is. I understood the Boston propositions to 
say that these subsequent Acts of Congress do retroact upon, 
give meaning and effect and purpose to, the proceedings of 
the President, make them rightful and in law effectual; but 
then they claim that this retroactive effect and interpreta- 
tion do not make the acts of the President a full exercise of 
the war power against trade or against the territory, but 
only give them a personal form of coercion. On the other 
hand, I understood Mr. Lord to argue that there is and can 
be no retroactive effect whatever in the legislation of Con- 
gress on the predicament as existing anterior to, and at 
the time of, the captures in question. So, too, I do not 



278 SPEECHES OF \VILLL\M MAXWELL EVARTS 

understand our friends to argue that there is not a war now. 
I do not understand ^Fr. Lord to argue that this is not a war 
now, including all the powers and all the rightful exercise of 
war, in maritime capture, in blockade, in condemnation of 
prize, and in what not. But he says — and this is his funda- 
mental proposition — that although a war inter gentes from 
its waging and prosecution, on the mere fact of its existence, 
imports to itself, under the law of nations, all the authori- 
ties and methods known to that law, yet a civil war derives 
only, and is limited by, in its modes and powers, such au- 
thority as the legislation municipal and domestic shall give 
it. And he says that the Act of July 13, 1861, — if I under- 
stood him aright — does really introduce, under legislative 
sanction and authority, territorial war, with its consequences, 
which he deprecates, not in word and in form, for it surely 
does not say anything about war, but because it had under- 
taken by municipal law to effect non-intercourse between the 
loyal and disloyal parts of the country. 

My friend, Mr. Lord, in his printed brief, has made a 
very extensive criticism on this act in a certain sense, which, 
I shall respectfully submit to the Court, a very few consid- 
erations will render inapi)licable. I shall not insist, at 
length, on the meaning of this Act which has been so well 
presented by the brief and the argument of my learned asso- 
ciate, Mr. Dana. But this is to be seen on the face of it, 
that it was not intended simply for a special or temporary 
purpose, but that Congress, foreseeing that circumstances 
might at any time arise which would render it necessary, 
has given authority to have a custom house on board ship, 
or to close the port by municipal authority. That has 
nothing to do with the use of force in suppressing the rebel- 
lion. The fifth section seems to be the first and earliest that 
can be indicated as having any special influence on the war. 
What is that.'^ In its nature — I will not repeat its terms — 
it is an aid and assistance given by municipal law to the 



THE PRIZE CASES 279 

military action of the Government in separating the loyal 
from the disloyal territory. But my learned friend says that 
that first introduces the right to establish non-intercourse 
and thus furnishes the degree and consequences of non- 
intercourse. 

Let us see how that is. We will first take it before the 
statute passed, where your military lines were drawTi or 
may have been drawn. They were dra'WTi from the city of 
Washington, or the city of Baltimore, or the shore of the 
Chesapeake across the country to Missouri. That was a 
purely military action of the Government and nobody here 
has disputed that it is lawful. Supposing that intercourse 
of any kind is attempted to be conducted across these mili- 
tary lines, from one side or the other, does not every person, 
does not every piece of property thus coming in contraven- 
tion of the military line come under the law of war? Is it 
not to be kept out? Is it not to be seized? Is not the mili- 
tary permission to be what the commander-in-chief indicates 
both in regard to persons and in regard to the appropriation 
or destruction of property? Is this Act of Congress a repeal 
of that authority? After its passage, when the general 
finds that his lines are being traversed by commodities, by 
vehicles, by letters, by correspondence, and when he under- 
takes to apply the power of war to preserve his lines, is he 
to be met by the suggestion: — "Oh, I know it is unlawful, 
but the Act of Congress has fixed the measure of my author- 
ity and the manner of its exercise, bringing it under control 
of the municipal law, and when ever you show a warrant for 
my arrest I will yield to the law; but unless you bring this 
form of legal process in pursuance of the municipal law, I 
claim my rights as a citizen and pursue my lawful business, 
made unlawful, only by the statute" ? 

This statute is in accordance with common law, which 
makes trading with the enemy a misdemeanor ; but does that 
save the ship of the British merchant and its cargo, pursuing 



280 SPEECHES OF WILLIAM MAXWTELL EVARTS 

its voyage to Russia in contravention of the non-intercourse 
which war produces, in the capture and condemnation of 
prizes in the Court of Prize, sitting as a court under the law 
of nations? Not in the least; and all the pretence and appli- 
cation of these considerations to this legislation conies 
utterly without support. 

But the Act of August 6, 1861, which in its terms attempts 
a full and thorough support of the acts of the President has, 
it is said by our learned friends, its vigor and operation only 
in the future and from its date, and makes war from that 
date. But why not for the past? T submit to your Honors 
that, on all the cases and on the principles of political con- 
trol in the situations of war and peace, and on examples in 
our own history, so well presented to your Honors in the 
facts of General Taylor's conduct in the Mexican war, 
before the passage of the Act of Congress declaring it, 
there is nothing truer, nothing simpler than that, when the 
authoritative voice of the Government has been presented 
concerning the state of war, it is — at least, in the absence of 
some express Ihnitation — received by the courts as an inter- 
pretation of the true character of the disturbances and hos- 
tilities. Will anyone contend, as a lawyer, that if General 
Tavlor's battle of Palo Alto and Resaca de la Palma had 
been replaced by naval engagements or had been attended 
by naval engagements, or by naval captures of the trade of 
Mexico, or by the establishment of a blockade, as acts of 
force by the military authorities having the power of the 
country for that purpose reposed in them, the captures 
would have been discharged and restored because they were 
made after Mexico had commenced war and while we were 
resisting it by land and by sea, but yet anterior to the Act 
of Congress? Why, the proposition, within any rules of 
public law or any authority, is absurd. Now this is all — 
this time — that is so zealously sought to be saved for the 
protection of these particular vessels, between the 27th of 



THE PRIZE CASES 281 

April and the time when Congress thus gave the voice of 
the nation, interpreting, not enacting, the state of war. 
The proposition goes no further, and it is met by every 
authority and by every principle of public law. 

My learned friends do not explain themselves exactly as 
to what kind of a blockade, and what consequences, in mari- 
time or naval power, this measure of the Government could 
rightly have. Our learned friend, Mr. Edwards, who repre- 
sented the neutral or British position, our friend Mr. Black 
and our friend Mr. Lord, do not, any of them, seem to ques- 
tion the right of blockading the ports. That is to say, they 
justify the Government in blockading the ports, without 
any act of Congress. Is that a municipal regulation? 
Certainly not. Is it a war power then? Yes. But they 
say that there should not have been superadded to this 
actual institution of blockade the sanctions for making it 
operative and effective which the law of nations brings. 
What are those sanctions? Why, that any vessel preparing, 
any vessel designing, any vessel attempting, a breach of 
blockade is, at any part of its voyage, liable to seizure. They 
say, "You have a right to keep vessels in front of those 
ports, you have a right to stop any vessel going in, you have 
a right to send her off, but you cannot bring her into prize 
condemnation." But if you cannot bring into prize con- 
demnation vessels seeking to break the blockade, how do 
you make the blockade effectual and operative? You make 
it operative, not by right of war but by mere power or scuffle 
in each case; and you collect about your ports the ships of 
all nations which have got that far without fault and without 
exposure of any kind. Well, if they got that far without risk 
and without exposure, they will get farther without risk and 
without exposure. If your limited strength is to send home 
to port vessels attempting to run the blockade, there to be 
released, your blockade is determined from the failure of your 
naval strength. Or if your right is simply to set her prow 



282 SPEECHES OF AMLLIAM MAXWELL EVARTS 

about at night and she can come back in the morning, and 
you repeat the game over and over again, then you have a 
mere pueriHty of war. 

AVhat is the power of blockade? What is it, says Sir Wm. 
Scott, but the forcil)le ])revention of access to ports? What 
is the forcible prevention of access to ports? It is like the 
forcible prevention of anything prohibited. It is not mere 
arrest; but it is arrest and detention, and infliction of conse- 
quences, whatever come from it. But my learned friend, 
Mr. Lord, seeing that that puerility of war would not do, 
says, "Oh, you may have the most terrible power of war; 
you may sink a ship attempting to violate the blockade." 
He says that if a vessel is bringing supplies (and I suppose 
he would say, if she were bringing contraband of war) you 
may sink her; but the law of nations is that, on the high seas, 
this execution of the law of war shall not be, and is not, 
permitted. The proposition of the law of nations is, these 
seizures of conunerce, of ships and their cargoes, may right- 
fully be made, but you shall neither destroy nor appropriate, 
on this primary forcible execution of a right. You may, so 
to speak, seize the ships in the darkness and uncertainty of 
night, but you shall not destroy them there, and you shall 
not appropriate them there. You shall keep them till the 
daylight of the prize court can shine upon them, discover 
their features and their circumstances, and show whether 
their seizure is an execution of the power of war. 

How does the law of nations enforce that rule? Why, 
if a belligerent power shall undertake to sink ships indis- 
criminately on the ocean — as my learned friends say it may — 
in order to maintain its war power, neutral nations, the au- 
thorities of the world, would intervene and say: "That is a 
power and right of war which cannot be executed in that 
way." There is but one case supposed in which the bellig- 
erent is authorized and justified, under the law of nations 
in destroying property — and that is when the condition of 



THE PRIZE CASES 283 

the law of nations that the prize jurisdiction and sentence 
shall follow is rendered practically impossible by the bellig- 
erent possessing no ports. That is the law of nations which 
keeps the Alabama afloat and gives to it execution and 
appropriation at sea, without prize adjudication. And 
that is the only way and the only reason. How otherwise 
does the law of nations enforce this proposition that you 
shall not only not destroy but you shall not appropriate? 
Because by a universal proposition of the law of nations, the 
title to property passes only by prize adjudication. If the 
ship which a belligerent has captured and sought to appro- 
priate should be found anywhere in the world, it would 
be no title, to be pleaded in an action of trover or replevin, 
that the ship was captured under the rights of war by a bel- 
ligerent at war. Prove all that on the part of the defendant 
and still the plaintiff would have a verdict and recover the 
property. But prove further that the ship was captured 
and brought in for adjudication, and produce the prize 
sentence, and the defendant will have a verdict, whether the 
capture was under the laws of war or not. It is thus 
that the law of nations, wise and strong, secures the observ- 
ance of this rule as the condition on which it will permit the 
exercise of belligerent rights on the open seas. It secures two 
great objects — first preventing the destruction of property, 
so that you shall not strike it out of the values of the world, 
so that the corn and the wine, the fabrics of comfort and of 
necessity that belong to the world for its use shall not be sunk 
in the bottom of the sea under the claim of belligerent right; 
and second, that neutrals shall not hold their position on 
the seas, subject to the discretion, the justice, or the good 
faith of naval commanders; but that the prize courts that 
make records and that bind their sovereign, shall have re- 
view of the captures. 

Now, if the Court please, I will look, but a moment, at 
the question of enemy property as distinct from the rest, 
and then I shall submit the case. 



284 SPEECHES OF ^VILLIAM MAX^VELL EVARTS 

Judge Nelson: In connection with your argument that 
the President, under the circumstances in which he was 
placed, has the power, can he grant Letters of Marque and 
Reprisal? 

Mr. Evarts: That question, if your Honors please, falls, 
I suppose, properly under the same considerations (and your 
Honor's question as well as my answer is equally applicable 
to a foreign war commenced by invasion) and under the same 
principles on which this Court held that, by the law of na- 
tions, the mere existence of war, without the exercise of 
legislative authority, did not operate an appropriation or a 
right of confiscation of goods on land, never doubting, how- 
ever, that it did operate a right of appropriation and of 
prize condenmation of goods at sea. Now, whether the 
President of the United States having a right to use the en- 
tire militia of the nation, having a right to use the entire 
navy of the nation, having a right to use the entire army of 
the nation, would also have a right to use the mercantile 
marine in the fonn of private ships of war for the purpose 
of prosecution of war must rest wholly on the question 
whether he, in the actual emergencies and needs which 
the facts of any given case had thrown upon him for the 
protection of the Constitution and the Government and the 
maintenance of the authority of both, as of necessity was 
obliged to recur to it. There is not any statutory authority, 
and there is not, in any terms in the Constitution, any 
authority given to him except to be commander-in-chief of 
the army and navy and to be the Chief Executive. 

Now, my owti judgment — if the Court will allow me to 
speak of what is so unimportant — is that when you come to 
the necessity of employing private armed vessels to main- 
tain the authority of the Government, whoever has the 
executive power of the Government in that emergency can 
issue those Letters of Marque. But, if your Honors please, 
that question can never arise, except in a prize court and as 



THE PRIZE CASES 285 

toward neutral nations. It never can become a question, 
when the authority is exercised in conformity with the in- 
terior structure by which the departments of the Government 
and the fabric of pubKc liberty and safety are to be main- 
tained. I know of no statute, or of no express clause of the 
Constitution which, in its necessary terms, covers this in- 
stitution; but the whole armed power of the country falls 
within his powers as commander-in-chief, to be employed 
by him for the purposes authorized by the Constitution. 

I understood your Honor to ask the question in reference 
to the existing state of the law, and not under any statute of 
law which should authorize, in case of emergency, of invas- 
sion, or of insurrection or of rebellion, a recourse to the 
system of privateering. 

Judge Nelson : I only asked in reference to existing Acts 
of Congress, such as existed at the time. 

Mr. Evarts: If there was such a general law, of course 
my argument that the President could use private armed 
vessels according to the law of nations would be applicable. 

I come now from that question of maritime capture, and 
to the proposition that a prize sentence is judicial, in sep- 
arate authority and effect from the act of capture. I do 
not know where my learned friends, who seemed to think 
that some of these acts by the Government might be war- 
ranted at sea, find any authority for any of them unless they 
can find authority for all of them to the extent that the Gov- 
ernment claims. Before, then, the Act of July 13th, if 
the war power of the Government was not in existence, and if 
the prize judicature did not exist, for aught I can see, a Bos- 
ton merchant could fit out a ship or vessel for the purpose of 
carrying contraband of war in the shape of consignments to 
Charleston, to loyal merchants in Charleston. I will keep 
him clear of the doctrine of constructive treason by carrying 
contraband of war to rebels in arms. But I do not see why, 
in good faith under a previous order from loyal citizens of 



286 SPEECHES OF WILLL\M MAX^VELL EVARTS 

Charleston, a Boston merchant could not send do\Mi a cargo 
of gunpowder and rifles, unless the power of war of the Gov- 
ernment exposed them to the apj^lication of the military, the 
naval, and the effective ])ower of the Government to seize it. 
There is not any libel or information that could be filed in the 
district court or anywhere else, under any statute that can be 
found that could stop it. There is notliing but the power 
of war to suppress it. My learned friend, Mr. Lord, would 
meet that case in this way: "You can sink that ship at sea, 
but you cannot bring it in and condemn it as a prize." 

Now, what is maritime capture in its essence, and in the 
mere quality of enemy property, as distinguished from 
capture for contraband or })reach of blockade? In the 
first place I ask your Honors' attention to the well-settled 
proposition of prize law, and that is, that the prize adjudi- 
cation always proceeds on the ground that the thing con- 
demned is enemy property, although it be condemned, being 
in fact neutral property, for breach of blockade or for carry- 
ing contraband. The proposition is this: that a belliger- 
ent has no right except against his belligerent — that is the 
beginning of it — but that neutrals, by contravening the law 
of nations and not respecting belligerent rights may get 
themselves into the attitude of being, pro hoc r?ce, enemies 
from their conduct. The two main features are, carrying 
contraband which exposes vessels to capture anywhere on 
the sea, and attempting to break the blockade which ex- 
poses them to capture at any time that the voyage is medi- 
tated, or the voyage is undertaken. But what right have 
we to take them.^ Because they have affected themselves 
with the quality of enemy pro hac vice; and such is the logic 
and such the language of the prize authorities. There never 
was a law" authorizing maritime capture that ever auth- 
orized anything but the capture of enemy ships and enemy 
property. There never was an act that authorized the cap- 
ture of neutral ships for breaking blockade. The prize 



THE PRIZE CASES 287 

Act, the capture law, all say, "seize the enemy's ships and 
goods." Well, we always seize neutrals. Therefore it is 
in the quality of enemy property that neutral vessels are to 
be condemned for breach of blockade and for carrying con- 
traband; and, so far from breaking blockade and contraband 
standing better than direct enemy property in these contro- 
versies, there is not a footing to go against neutrals for con- 
traband or for the breach of blockade, unless the doctrine 
of enemy property is established. Will neutral nations 
submit, as they all have submitted, to a law of nations which 
prevents them from carrying on commerce between block- 
aded ports and their own countries, if our ships are permitted 
to carry on such commerce from our ports .-^ What was the 
case of the Francisca? The Russian blockade was excluded, 
as against neutrals, because England had reserved the right 
to carry in commerce of her own, for her own convenience, 
for a period of ninety days. The neutrals submit wholly 
on the ground that you have stopped commercial intercourse 
of all kinds by the laws of war. They say, "you had a 
right to do it toward your enemy. If we undertake to run 
against you, we become your enemy pro hac vice and fall 
within the same condemnation. But if vou have no condem- 
nation for the enemv, you can have none for us." If a 
Boston ship can carry goods into Charleston, then an Eng- 
lish ship can. And if an English ship can be seized for doing 
it, and sentenced, a Boston ship cannot be seized for doing 
it and released. This doctrine, that you may take the 
Boston ship and turn it aside, and take the English ship and 
confiscate it, is a doctrine which the neutral powers would 
not submit to. 

Now, this is the proposition from Halleck's international 
law, page 726 : 

"As a general rule all property belonging to the enemy 
found afloat on the high seas, and all property now afloat, 
belonging to subjects of neutrals or allies who conduct 



288 SPEECHES OF WILLIAM MAXWELL EVARTS 

themselves as belligerents, may be lawfully captured. All 
property condemned is, by fiction or rather by intendment 
of law, the property of enemies — that is, of persons to be so 
considered in the particular transaction. Hence prize acts 
and laws of capture with reference to enemies' property, are 
construed to include that of subjects of neutrals and allies 
who, in the particular transaction, are to be regarded as 
enemies." 

Now, about breach of blockade. It is not any fault in an 
enemy to run a blockade. An enemy's running a blockade 
does not expose him to confiscation. He, as an enemy, is 
exposed to confiscation because he is an enemy, whenever 
you may catch him or how, but not because he has run the 
blockade. This is the decision in the case of the Francisca. 
An enemy's ship commits no oft'ence against the law of na- 
tions by attempting to elude a hostile squadron and enter a 
blockaded port. She has a perfect right to do so if she can. 
She is already subject to seizure in another character, but 
she does not incur any penalty by breach of blockade. 

Therefore, you see that, from the one hand and the other, 
these neutrals, who, my learned friend Mr. Lord thinks, must 
have to take care of themselves while he is saving the actual 
enemy, come into the matter only because they turn them- 
selves into enemies by doing things which are offences for 
them. The enemy is an enemy in his own quality, not from 
any offence he commits, but of his predicament — if I may 
use a phrase to which some objection is made. 

Now, it is said that there are various obligations, in justice, 
in duty, and in consistency with the principles of jurispru- 
dence, in touching the commerce, in the shape of the ships 
and cargoes, of private owners who are loyal citizens and 
yet are residents of a part of the rebel territory. Now, let 
us understand that matter. It may or may not have been a 
necessary or useful thing for this Government, in under- 
taking to suppress the rebellion, to seize the Crenshaw, the 



THE PRIZE CASES 289 

Hiawatha, the Brigida or the Amy Warwick. It may be 
quite true that the rebellion might be suppressed without 
doing that. But that it was a wise thing to attempt to cut 
off the inexhaustible supplies from the rebellion which it 
would require from foreign nations, by drawing a line of 
blockade and suppressing the commerce of neutrals and of 
the rebellion, nobody can doubt. That it was just as com- 
petent as it was to draw a line across the country — for there 
was no municipal law for that — there can be no doubt. 
But the truth is this, if the Court please: — You do not war 
against private property on sea any more than you do on 
land, in the true theory of the matter. You do undertake to 
reduce and destroy the commerce which belongs to the ene- 
my's country, as a part of its growth, its strength, its sup- 
plies, its energies, its revenues, its resources. That is what 
you undertake to do. Now, every ship is the ship of some 
private owner; but you cannot touch the commerce of the 
enemy as such, unless you touch the particular ships which 
belong to private persons. When you invade an enemy's 
country you advance through his territory to reduce his 
strength and cut off his resources; but every rood of land 
which you occupy by your military movements is private 
property. You do not confine yourself to seizing the public 
places in the cities or the public highways in the country. 
You cannot encroach upon and occupy and reduce the terri- 
torial strength of the enemy except by encroaching upon and 
possessing and appropriating and applying, and using, ac- 
cording to the laws of war, the acres which belong to particu- 
lar owners. 

Now, the law of war, when you occupy private property 
on land, is one thing, and the law of war when you capture 
property at sea is another. They are both laws of war. 
They have their own reasons. It is not necessary to en- 
lighten or defend them. The general proposition in regard 
to the land is that you keep it for military purposes, in the 

21 



290 SPEECHES OF ^^TLLIAM MAX\\TLL EVARTS 

largest sense, and that you can api^ropriate it so as to have 
the usufruct of it during the possession which war gives you. 
But what is the law of nations and of war in regard to ships? 
It is this: The only way they can he taken from the enemy's 
commerce is, either to destroy them at sea or elsewhere, or 
to preserve them as part of tlie property of the world and 
to change the title from the enemy to yourself. You do not 
pile up his ships in your harbors to be restored to him after 
the war by the jus post domhiium. You do not destroy 
them. That is not permitted, from the danger to neutral 
property by the execution without examination. 

You are then proceeding here to suppress the enemy's 
commerce. Was that a judicious object for the President 
and the i)olitical authorities of the country to effect? We 
will not debate that here. Here is not the place to debate it. 
There was the place to debate it. Could any man in his 
senses suppose that in execution of these powers of war, out of 
a commerce so limited in the possession of ships on the part of 
the South as we know it to be, there would have been brought 
with the Registers of the Prize Courts of the country forty 
million dollars' worth of property, almost all of it, I agree, 
neutral property, British, French and Mexican i)roperty, and 
not even a cry of faultfinding from these great nations? 

Now, if we have found that the application of the law of 
war is submitted to by neutral nations, is recognized, and 
has, without recourse and without restitution, brought into 
our registers this quantity of commerce, what would the 
commerce have been which would have flowed in from all 
parts of the earth, feeding the failing revenues and exhausted 
resources of this rebellion, if we had not applied the law of 
war? Will commerce keep away under my learned friends' 
peace blockade and monitor malis imposnit doctrine of 
stopping the trade and returning the ships? Not a boat of 
this forty million dollars' worth would have come within the 
clutches of your war power, and the whole strength and aid 



THE PRIZE CASES 291 

of foreign nations would have supplied this rebellion not only 
with the resources which their commerce gave them, but 
with the alliances and the war which must have sprung up 
between this country and them. 

Now, if the Court please, we do not sit in judgment on the 
President and his councils. We show you that he has at- 
tempted and undertaken to do this. We show you the 
circumstances under which it has been done, and we show 
you the measure of its practical consequences. 

Now, I agree that when my learned friend exclaims 
"Shall we not only be asked to concede these proceedings 
against loyal citizens in the Southern States but to say that 
it is just for a parental Government to execute this seques- 
tration of the hard earnings of an honest and loyal citizen 
allured under the stress of a rebellion which he opposes 
with his will?" my learned friend commits the common 
error of confounding what is lawful and just as an end 
with what is lawful and just as a means. Shall I be told 
that it is the dictate of parental love to mutilate the warm, 
living body of his child? As an end, nothing more cruel 
and more wicked. But if it be the surgeon's knife which 
amputates the limb, to save the child's life, then, as a means, 
it is not only allowable, but it is the duty of the parent thus 
to apply the infliction. Nothing so bad as to confiscate the 
Crenshaw, the Hiawatha, or whatever ship of neutral or of 
loyal citizen, as an end. But as a means of carrying the 
protection of this Government to all the property, not only 
of these individuals there resident, but of all the loyal people 
of the South, and of saving from the madness of rebellion 
the rebels themselves, we are not, under the generalities of 
war, to be distracted from our purpose and duty by a shudder 
at the blood which trickles from the surgeon's knife. 

Now this difficulty has been noticed in all similar contro- 
versies. When our revolutionary ancestors issued their 
resolution for maritime capture, they deprecated on the 



29^ SPEECHES OF \^'ILLIA^I MAXWELL EVARTS 

face of it that it would bear hard on the subjects of Eniihnul 
who were their friends, antl they be^iied tlieni to understand 
that it came from the generahties of war. When the British 
peopK^ undertook their movement, and the Crown of Eng- 
land suppressed the trade of these colonies. Lord Rocking- 
ham and other opponents protested against the general 
proceedings which confoundeti loyal subjects in America 
with those who were rebellious. 15ut as great an authority 
as Lord ^Linstield defended it, and on its true reason. He 
said: "It is the case put by the Swedish general, Ciustavus 
Adolphus. 'My lads,' said he, 'do you see those men yonder? 
If vou do not kill them thev will kill vou.'" 

Is there any deeper or more solenm moment of duty than 
that? And shall a parental Government, which never 
inflicted injury in peace, be accused of cruelty — not against 
men, for, mv learned friend savs, we mav shoot them all, 
not against the fixed property down South, for we may burn 
it all — he says — not against their ships, for we may sink them 
all — but the prodigious cruelty of changing property in to- 
bacco and cigars? Why, my learned friend strips himself 
and this contest, of the laws of war which are its amenities, 
and must choose between the alternative of waging a feeble 
war or the alternative of waging a barbarous and cruel war, 
beUuin ncfandum. He vibrates between one and the other. 
If he had been brought into the councils of the Government 
he undoubtetlly, in that situation and capacity, would have 
approved that, according to circumstances and means, the 
measures of the Government should be taken. 

Now, if the Court please, we on the whole respectfully sub- 
mit that the L nited States, a sovereign nation, prosecuting 
its right by force to suppress a domestic rebellion which uses 
the array and power of war against it, may rightfully exert 
all the powers and methods of war which the resources of 
its territory and its population furnish; that the Government, 
in doing this, had set on foot and was maintaining a maritime 



THE PRIZE CASES 293 

blockade according to the law of nations; that in the prose- 
cution of that right these captures were made, and the adjudi- 
cation of the vessels and cargoes was made in the court 
below; that these measures were within the competency of 
the Government as the force of war; and that the sentences 
are conformed to that authority. 

And now, if the Court please, this closes the case of the 
Crenshaw on the part of the Government, and with it the 
discussion of the important questions, juridical, political, 
governmental, and international, which have so long occu- 
pied the attention of the Court, As viewed by the Govern- 
ment, the inquiry as a judicial one is limited to the single 
topic of prize or no prize as presented on the record of each 
particular case and, behind that, to the single further ques- 
tion whether the political authorities of the Government, in 
making these captures, were executing the powers of war 
on reasons of duty and necessity sufficient for itself. On 
behalf of the claimants, the view presented is this, that this 
nation, this Government, is put to plead at this bar for the 
right and the power to use the full measure of its strength to 
uphold the Constitution and to preserve its existence. Xo 
other Government, no other nation, ever urged such a plea 
in any presence less august than of the assembly of the na- 
tions, before the Judge and lawgiver of all the earth, magister 
et imperator omnium, Deus, in the solemn arbitrament of 
war. If this momentous issue be reallv before vou, it is 
the greatest question ever submitted to human hearing; 
and its very statement shows that perils limitless and inestim- 
able hang upon your judgment, for if, in truth, the law of 
this Government is at variance with its power, in the very 
agony of this great struggle to preserve its existence, its 
fate can be neither uncertain nor remote. And who will 
wish to survive it? 

If the Court please, to your abundant learning, to your 
wide judicial experience, to your comprehensive wisdom, 



294 SPEECHES OF \\TLLIAM MAXWELL EVARTS 

to the intimate and all-pervading sense of nationality, to 
your perpetual justice, your all-compelling duty, your all- 
inspiring loyalty, this question of the welfare, the safety, 
the permanence of the Rei)ul)lic, of which this Court is the 
grace and the defence, may well he committed. 



IV 

ARGUMENT IN THE SUPREME COURT OF THE 
UNITED STATES IN CHURCHILL AGAINST 
THE CITY OF UTICA 

TAXATION BY STATE OF THE STOCK OF 
NATIONAL BANKS 

NOTE 

The history of legislation and judicial decisions affecting the 
question of taxation of banks (both State and National) prior to 
the argument of this and similar cases is briefly as follows: 

In 1863, Congress passed an Act, providing for the organization 
of banks under the Federal authority and control. This Act was 
superseded in 1864, by an Act passed in June of that year, which 
contained additional provisions of material importance to the 
questions raised in the various bank tax cases. Before the passage 
of either of these National Bank Acts, Congress had enacted, 
February, 1862, that the United States stock and bonds, whether 
held by individuals or corporations, should be exempt from taxa- 
tion by or under State authority. This enactment was little more 
than legislative expression of previous judicial interpretation and 
decision by the Supreme Court in the leading case of McCiilloch 
vs. Maryland and cognate cases, and of the doctrines there laid 
down by Chief Justice ^Marshall, asserting the supremacy of the 
powers of the General Government under the Constitution and 
freedom of the National credit from State interference or impair- 
ment. 

In February, 1863, two cases came before the Supreme Court 
involving the question whether the Tax Commissioners of New 
York City could lawfully impose a tax upon that part of the prop- 
erty of banks, organized under State authority (State Banks) that 
consisted of United States securities {People ex rel Bank of Com- 
merce vs. Commissioners of Taxes, 2 Black, 620 and People ex rel 
the Bank of the Commonwealth vs. Commissioners of Taxes, 2 Black 
635). In the Bank of Commerce case the New York Court of 

295 



296 SPEECHES OF \\TLLIAM MAX^^TLL EVARTS 

Appeals had made a distinction between those United States 
securities that had been acquired by the bank prior to the Act of 
Congress of February, 186''2, above referred to, and those acquired 
since the passage of that Act, holding that by force of that Act 
United States Securities acquired since its passage were exempt, 
but otherwise not. The Supreme Court rendered its decision 
March 10, 1863, reversing the New York Courts and holding, on the 
doctrines of McCulloch vs. Mari/laud, that all United States securi- 
ties owned as the property of the banks were exempt from taxation 
by the State and should be deducted from the aggregate property 
of the banks, in arriving at the property lawfully taxable under 
State authority. Under the law of New York as it then stood the 
method of subjecting corporations to taxation provided that the 
capital stock of every Company "shall be assessed at its actual 
value, and taxed in the same manner as the other personal and real 
estate of the county." 

Immediately upon the announcement of these decisions and, no 
doubt, as a direct consequence, the New York Ivegislature passed 
an Act varying the method of taxing Banking Associations and 
provided that "All banks, banking associations, etc., shall be liable 
to taxation on a valuation equal to the amount of their capital stock 
paid in, or secured to be paid in and their surplus earnings etc., in 
the manner now provided by law." It was supposed by the legis- 
lators that they had thus found a method of accomplishing much 
the same result, that would not be obnoxious to the Supreme 
Court decisions. As by this method no examination and appraisal 
of the actual assets of banks need be made to arrive at a basis of 
taxation, it might be construed as not to impose a tax upon those 
assets. But the United States Supreme Court in the Bank Tax 
Case (2 Wallace 200), which was argued in January, 1865, disposed 
of this legislation of New York as being equally repugnant as the 
former, holding that taxation on a valuation equal to the amount 
of capital stock paid in was taxation of the property in which the 
capital stock was invested, and that in so far as that property con- 
sisted of United States securities, the attempt to impose a tax by 
the State Law was unconstitutional and void, again reversing the 
New York Court of Appeals. 

But the efforts of the State to bring within the scope and exer- 



BANK TAX CASE 297 

cise of its taxing power the large amount of property invested in 
the banks, though the investment itself was thus protected from 
any direct imposition by State authority, soon found an indirect 
means of accomplishing substantially the result which, through 
direct interference by the State, The Federal Constitution had 
prohibited. 

The National Bank Act of June, 1864, provided for a tax by the 
Federal Government upon the circulation and deposits and then 
proceeded as follows: "Provided, that nothing in this Act shall be 
construed to prevent all the shares in any of the said Associations, 
held by any person or body corporate, from being included in the 
valuation of the personal property of such person or corporation 
in the assessment of taxes imposed by or under State authority, at 
the place where such Bank is located and not elsewhere, but not at 
a greater rate than is assessed upon other moneyed capital in the 
hands of individual citizens of such State; provided, further, that 
the tax so imposed under the laws of any state upon the shares of 
any of the associations authorized by this Act shall not exceed the 
rate imposed upon the shares in any of the banks organized under 
authority of the state where such association is located; provided, 
also, that nothing in this Act shall exempt the real estate of asso- 
ciations from either state, county or municipal taxes to the same 
extent, according to its value, as other real estate is taxed." 

Shortly after the decision of the Bank Tax Case, and in March 
1865, the New York legislature passed an Act, called an enabling 
act, by which a method was provided whereby banks organized 
under state laws could avail themselves of the provisions of the 
National Bank Act and transact their business under Federal 
rather than State control. Under Section 10 of this Act, "All the 
shares in any of the said banking associations organized under the 
Act of Congress, held by any person or body corporate, shall be 
included in the valuation of the personal property of such person 
or body corporate or corporation, in the assessment of taxes in the 
town or ward where such banking association is located, and not 
elsewhere, whether the holder thereof reside in such town or ward 
or not; but not at a greater rate than is assessed upon other 
moneyed capital in the hands of individuals of this state : Provided 
that the tax so imposed on such shares shall not exceed the par 



298 SPEECHES OF WILLIAM MAXWELL EVARTS 

value thereof; and provided further that the real estate of such 
associations shall be subject to state, county or municipal taxes to 
the same extent, according to the value, as other real estate is 
taxed." 

Upon this state of the law taxes were imposed on the shares of 
National Bank Stock in the hands of individuals, at a full valua- 
tion, though the entire capital stock of the banks was invested in 
and represented by United States securities, with the exception, of 
course, of the real estate owned by the respective banks. The 
case of Churchill ayaithsl the Ciii/ of Utica was argued at the same 
time as Van Allen vs. The Assessors, 3 Wallace, 573, and another 
case, all of which involved the legality of the tax. The Court 
decided that the tax was illegal, but the decision was on the ground 
that the law of New York was repugnant to the Act of Congress 
in that it made no such limitation as the Act of Congress required, 
viz., " that the tax so imposed under the laws of any state upon the 
shares of the associations authorized by this Act, shall not exceed 
the rate imposed upon the shares of any of the banks organized 
under the authority of the State where such association is located." 
The State banks were taxed on their capital and under the ruling 
of the Supreme Court if the capital was in United States securities 
it was exempt; thus a discrimination was made against the Na- 
tional Banks and in favor of the State Banks. But, as the Court 
said: "This is an unimportant question as the defect can be reme- 
died by the State Legislature." 

The important question discussed in the argument and in the 
opinion of the Court and in the dissenting opinion, was whether the 
tax on the shares was not in effect a tax on the capital of the bank 
and, therefore, under prior decisions, so far as the capital of the 
bank was invested in United States securities, invalid. W^hile this 
discussion was not necessary for the decision of the particular cases 
before the Court and in that sense was extra judicial, still the 
Court intended by this decision to settle this important point. 
The cases were argued at great length on January 31, February 
1, 2 and 5, 1866. Associated with Mr. Evarts on the argument 
were C. B. Sedgwick, John H. Reynolds and Lyman Tremaine. 
They were opposed by Francis Keman and Amasa J. Parker. 
The Court decided, Mr. Justice Nelson delivering the opinion, that 



BANK TAX CASE 299 

a tax upon the shares of National Bank Stock was not repugnant 
to the constitutional exemption. From this decision the Chief 
Justice and Justices Swayne and Wayne dissented in an opinion 
by the Chief Justice. 

In the face of this opinion of the Court, however, Mr. Evarts, 
in a professional opinion, advised the submission of the question 
to the Supreme Court again in cases where it would be essential to 
the decision to pass on the question. He expressed great confidence 
that the Court would finally adopt the reasoning of the Chief Jus- 
tice and modify the extra judicial dicta pronounced by the Court in 
this case. In this expectation he was disappointed, for in Decem- 
ber, 1866, eleven cases came before the Supreme Court involving 
this question in the argument of which Mr. Evarts took part. 
The Court treated the cases in a somewhat summary fashion, reit- 
erating the decision in Van Allen vs. the Assessors, and Churchill 
vs. Utica, and adhering to the doctrines there laid down. There 
was also the same dissentient vote. {People ex ret Duer against 
Commissioners of Taxes, 4 Wallace, 244.) 

ARGUMENT 

May it please the Court: I cannot think that the learned 
counsel, on the one side or the other, who have addressed 
the Court in this discussion, which it is permitted to me now 
to close, have at all over-rated the importance of the subject 
presented to your Honors. As a pecuniary interest, it is 
probably as large as ever came under your cognizance, — larger 
than, in the course of jurisprudence, has ever been submitted 
to any other court, — for, if looked at only in the measure of 
an annual tax to be laid by the various States upon the whole 
mass of property of these national banks, it comes to an 
enormous value; and, regarded as a rule, not for a year, but 
for the continual course of taxation, the proportions swell to 
still larger dimensions. So, too, in the extent of the appli- 
cation of your rule to be laid down in this case, which, though 
coming from the State of New York, yet, since that State is 
under the Constitution and under the laws of the United 



300 SPEECHES OF WILLIAM INIAXWELL EVARTS 

States, must be substantially of the same character and have 
the same effects in all the States of the Union, the magnitude 
of all the interests is again presented as most serious. But 
while I thus agree in the gravity of the issues from the pecun- 
iary interests at stake, I must think that some of the topics, 
insisted upon by our learned opponents as great elements in 
the importance of this question, were misconceived. The 
question whether such a great mass of property should be 
withdra\Mi from the funds accessible to the taxation of the 
States, which presented itself to the learned court that de- 
cided this cause in the State of New York, so that, somewhat 
beyond the bounds of ordinary judicial decorum, the learned 
Judge spoke of it as "frightful," and which, in the arguments 
of my learned opponents, has been brought to your notice in 
various tones of alarm and lament, is really not a topic for 
insisting upon the importance of this question. Whatever 
there is to disturb the equanimity of a court in that subject 
has already been disposed of by your Honors in the previous 
decisions, which have withdrawn absolutely, and under any 
form of property or ownership, the securities of the Federal 
Government known as the "public debt." This matter of 
the three or four hundred millions of bank stock, which weare 
considering, is not the cause or the occasion of the subtraction 
of these funds from State taxation. It is as investments in 
the securities of the Federal Government that these stocks 
are presented to your Honors as entitled to the immunity 
which belongs to these securities; and it is under decisions of 
this Court, which have made $3,000,000,000 of Federal 
debt not subject to State taxation, that this derangement of 
the funds, of the property, which, on one side or the other, 
is to bear the burdens of our double government, is affected. 
For the like reason, there is as little foundation, on an 
accurate attention to the subject, for the suggestion of the 
impropriety of the want of uniformity which would be pro- 
duced among the citizens and in respect to property, if these 



BANK TAX CASE 301 

investments, these bank capitals, these bank operations, 
should be withdrawn from the whole support of the State 
Governments under which they are protected in common 
with the whole mass of property of the same description, — that 
is, the mass of personal propertj^ — and for the statement that 
this gives great magnitude to the interests presented to you, 
as if it were a question whether this mass of property, now 
before you, should escape taxation or not. That is not the 
question. It has been suggested to you already by my 
learned associates that, under the taxation of the National 
Government, as prescribed in the frame and as a part of the 
bill creating these banks, they are made to pay, in the sup- 
port of our common burdens, a very large measure of taxa- 
tion, amounting to from two and a half to three per cent, in 
the average upon their whole capital, and that thej^ thus 
pay from ten to twelve millions of dollars annually towards 
the support of the Federal Government. 

At a time when practically we paid no taxes to the Federal 
Government, and the States had, undisturbed, the whole 
area of the real and personal property of the citizens of the 
United States by which to support their own institutions, a 
subtraction from the State Governments of a fund of taxa- 
tion was equivalent to a withdrawal of it from contribution 
to the public burdens in any direct form. But now that we 
bear the burdens of taxation in our property in support of 
both the Federal Government and our State Governments, 
it is apparent that the suggestion, that the withdrawal of 
property from the legitimate exercise of the power of taxa- 
tion by the States is relieving it from the payment of taxes, 
no longer has support in the fact. It becomes, therefore, as 
respects the burdens which the citizens of the United States 
and the citizens of the States, both being the same persons, 
are to bear, a question merely of the prudence, wisdom, and 
policy of the adjustment of taxes; for just so far as these 
banks contribute to Federal taxation, just so far they relieve 



302 SPEECHES OF WILLIAM ^L\XWELL EVARTS 

all the other property of the citizens of the different States 
from their contributions to the burden of Federal taxation. 
If it be true that they no longer are computed in the mass of 
property that shares the burdens of State taxation, never- 
theless the citizens of the States, in their other property, 
feel the contribution of these national banks to the needs of 
the National (iovernment, just as distinctly and just as 
directly as they would, if they contributed to the support of 
the State Governments. We are, therefore, relieved from 
both of these elements of difficulty and these disturbances in 
respect to the judgment of the court, so loudly insisted upon. 
If the present rate of taxation does not exact from this kind 
of property its full share of the burdens which it should be 
called upon to bear, then the Federal Government, the com- 
mon master of all those institutions in all portions of the 
country, acting in the general interest, but regarding also the 
private interest of the citizens of all the States, may in- 
crease the taxation; so that, instead of contributing ten or 
twelve millions of dollars as they now do, by enlarged rates 
they nuiy be made to contribute twenty or twenty-four 
millions of dollars. That is wholly a question of policy and 
wisdom in the taxing power. 

Your Honors will thus see that all these considerations 
really do not touch the burdens of the citizens, but only the 
question what, in the complex system of our government, 
which now is required, both in its general control and in its 
separate State jurisdiction, to demand taxes from the citi- 
zens, is the proper and beneficial adjustment for us, in our 
capacity of citizens of the State and citizens of the United 
States. 

Nor am I at all disposed to dissemble or disguise the dif- 
ficulties of the discussion. If they seem to me less formidable 
than the zeal and ability of my learned opponents, in the 
interests of their clients, have represented in urging them 
upon the Court, yet the respect due to the unanimous, ad- 



BANK TAX CASE 303 

verse opinion of the highest court of the State of New York, 
expressed in the judgment of one of the most distinguished 
Judges that the State has produced, who now, by voluntary 
retirement, has closed one of the most honorable judicial 
careers that our history can show; the great dictum (as it is 
called) of Chief Justice Marshall, and the carefully weighed 
opinion of Mr. Webster, speaking always as one having 
authority, would admonish me of the rashness of my judg- 
ment. After all the difficulties, I apprehend that a thorough 
examination of the case will show, that, though the question 
comes here under the appellate jurisdiction of this Court, 
under the 25th section of the Judiciary Act, and though the 
subjects of discussion here, and the decision appealed from 
and to be reviewed here, do touch the construction of the 
Constitution and the laws of the United States, and the 
great constitutional conflict between the powers of the 
General Government on the one hand, and the rights and 
jurisdiction of the States on the other hand, yet all these 
questions, belonging to that high region of jurisprudence, 
have been really disposed of by the previous judginents of 
this Court; and the limit of the discussion, which, on the 
presentation of the case and your Honors' scrutiny of it, 
will prove to be needed for its determination, will be found 
to fall quite short of this elevated region, and really will turn 
upon questions of corporation law, as to what the relations 
of shareholders are, in the just idea of the constitution of a 
corporation, to the property and franchise, which, as an 
aggregate, are undoubtedly represented by the corporation 
itself. Since, then, it turns upon this question, what the 
relations of shareholders are to the property and franchise of 
a corporation, I shall consider whether or not the previous 
decisions of this Court have disposed of the question already, 
by its adjudications on the capital and the franchises of cor- 
porations; or whether, not having thus been absolutely 
covered by the previous decisions, the relation of shareholders 



304 SPEECHES OF A^TLLIAM ^L\XWELL EVARTS 

to a corporation is such as to require their inclusion within 
the principles that this Court has already laid down, in re- 
gard to the aggregate property and franchise; or, if this is 
not the case, whether a discrimination can be made, which 
shall find a place for it as new and separate property in the 
hands of shareholders, to be unaflVcted by the rules estab- 
lished in reference to the aggregate property. 

Now, if the Court please, I have but a word to say in 

regard to the particular circumstances of the case in which 

I especially speak; for the question to be discussed in it is the 

same as in the other cases, and is substantially the same 

question, I imagine, that must come up from the different 

States, whenever attempts shall be made to exercise the right 

of State taxation on this subject matter. This Bank of 

Utica was constituted as a National Bank under the Act 

of 1863, and its capital was wholly invested in public 

securities of the United States that were issued before 

the 1st day of June, 1864, — a date only important, since 

it distinguishes those securities as being previous to the 

Banking Act of 1864,— in which latter Banking Act, for 

the first time, ai)i)ears the clause cited from the 41st section, 

which gives a license or permission for the taxation of shares. 

Whatever, then, there may be in any differences in this 

respect, as has been hinted at in the judgment of the Court 

below, this Bank occupies the most favorable position; for 

its securities were taken by it, as investments, while there 

was the open and general pledge of the public faith, that they, 

protected by the National arm, were wholly free from State 

taxation. And the bank, organizing and acquiring these 

securities under such circumstances, if there be much for 

judicial consideration in what has been adverted to more or 

less in the argument (to wit, the question of a breach of faith 

in the Government, in allowing taxation by permission of 

section 41 of the Act of 1864) is within the most favorable 

consideration in that respect. But, I confess, I cannot see 



BANK TAX CASE 305 

that the correction of the alleged breach of faith on the part 
of the Government, if it has been shown in any degree, — I 
do not think it has been, — could be made by a judicial deter- 
mination of this Court. Undoubtedly we do press it, and 
properly, as an argument of much force, tending to the proper 
construction of section 41 and the license there given, that, 
in the view contended for by our learned opponents, a breach 
of faith might be involved; whereas, in the construction 
which we suppose it properly bears, no such imputation is 
admissible. 

If the Court please, this plaintiff in error, owTiing fifty 
shares in this bank, of the par value of five thousand dollars, 
has been rated thereon as a tax-payer under the laws of 
the State of New York, and is compelled thus far, by the 
judgment of the Courts of our State, and, unless your 
Honors shall reverse their decision, will be finally com- 
pelled to pay a tax, at whatever the rate of taxation 
is in the local community where this bank is placed, 
upon the par value of those shares. All the other stock- 
holders are exposed to the same application of law, and, 
under this decision, the united stockholders are to pay a 
rate of taxation under the jurisdiction of the State upon 
what is equivalent, in their shares taken together, to the 
capital of the bank. In other words, $200,000 being the 
capital of this bank — a National Bank — and being wholly 
invested in Federal securities, that capital is, by the form of 
assessing and collecting a due proportion of the tax on it 
from each shareholder, made to produce to the State of New 
York precisely the same amount of taxation, as if the same 
rate had been laid upon the capital of the bank, and it is 
made to affect the actual beneficial value of the shares, and 
the receipts and profits of the shareholders, precisely in the 
same manner, and to the same effect and measure, as if the 
tax had been laid upon the aggregate capital. I think, in 
the whole course of this discussion, your Honors have not 

22 



306 SPEECHES OF WILLIAM MAXWELL EVARTS 

heard from our learned opponents any contradiction of that 
proposition : that this form and manner of taxation produces, 
as its fruit to the State, precisely the same amount, as the 
same rate of taxation upon the aggregate capital in the 
hands of the bank; and that it produces the same effect in 
diminishing the value of the capital stock, by diminishing 
the profits of that capital stock, laid in the form now pro- 
posed, that it would produce, if it were laid upon the aggre- 
gate capital, and upon the corporation as the taxable person. 

These matters of fact being thus clearly ascertained, free 
from dispute, we need next to look accurately and attentively 
to what are the premises concerning the taxability of the 
corporations themselves, having their capital in such invest- 
ments, from which we are to start upon the only inquiry left 
for discussion in this Court, whether the stock, as an aggre- 
gate, and the franchise, as a part of the value in the hands of 
the corporation, and the corporation, as a person subject to 
taxation, being exempt from this tax, this rate, this payment 
to the State of New York, the shareholders are subject to 
all from which the corporation itself is free. 

I think that, on the second page of my brief, I have ac- 
curately stated the result of the determinations of this 
Court, both on this topic, as it relates to the investment in 
United States securities, and to the corporation, as a national 
institution within the protection of the Constitution, oper- 
ating as an agency and means employed by the Government; 
and I say that it is settled by adjudged cases in this Court, 
that no tax can be imposed, by the laws or authority of a 
State, upon the securities in which the capital of this bank 
was invested, nor upon any person or corporation standing 
in the relation of owTier of such securities, nor by any measure 
of his or its property as including such securities. The 
cases are familiar to your Honors, and I will only read a 
word or two from the former bank-tax case in the Court of 
Appeals, to show that the principle is as thoroughly recog- 



BANK TAX CASE 307 

nized by that Court, — obeying the decision of this Court, 
which has corrected its former errors, — as it is by this Court 
itself. In that case, which is not reported as yet in any 
vokime of our reports, but is the case which came up to this 
Court, and is reported here in 2 Wallace, Chief Judge Denio 
said: 

"It must be considered a settled point, that the power of 
taxation residing in the State Governments does not em- 
brace, as a possible subject, the securities of the public debt 
of the United States." 

Upon that clear recognition that the subject, the res, the 
investment, was absolutely protected against State taxation, 
his Honor, giving the opinion of the Court of Appeals in 
that case, went on to hold that, whenever the tax was laid, 
not upon the capital of the bank at its value to be ascertained 
by assessors, but upon the nominal or original capital of the 
bank, it was not a tax upon the Federal securities, although 
the whole of that capital was invested in those securities. 
That error this Court corrected by the decision in 2 Wallace; 
and now, more than ever, the Court of Appeals admits this 
principle, and submits to that application of the principle, 
but has found a means, in a decision and opinion in these 
cases, to say that, although Federal securities are not a 
possible subject of State taxation, yet that Federal securities, 
under the form of ownership which their relation to the 
shareholders of a national bank exhibits, can be made to pay 
precisely the same tax that they would, if they were a possible 
or real subject of State taxation. 

The other immunity which we claim here, and concerning 
which it is important to know to what the determination, up 
to this point, of this Court has brought us, is the immunity 
of these banks in capital, in operations, and in franchises, 
from State taxation, not because of any form of investment 
of their property in Federal securities, but, in the absence 
of that investment, because of their mere character of Fed- 



308 SPEECHES OF WILLIAM M\XWELL EVARTS 

eral institutions. What, from this point of view, is their 
situation in regard to State taxation? Upon that point I 
apprehend this is a just postulate, not to be contested and 
not really contested by the arguments of the learned counsel : 
— that it is settled by adjudged cases in this Court, that this 
Bank, in its corporate capacity, is not subject to State taxa- 
tion by the laws or under the authority of a State, upon its 
franchise, operations, or capital (aside from the question of 
investments in Federal securities), but that it is wholly 
exempt from such taxation, by reason of its relation to the 
Federal Government, as an agency or instrument of that 
Government in the exercise of its constitutional power. 
Without adverting or recalling your Honors' attention to 
the cases in your own Court, insisted upon so frequently and 
so familiar to you, I will, upon this point, only call your 
attention to the complete recognition of this proposition by 
the Court of Appeals. In the first Bank tax case — the one 
which was decided on appeal by this Court in 2 Black — a 
case reported in 23 New York Reports, Judge Denio gives 
this as the clear judgment of that Court upon the proposition: 

"But when it had once been settled that the bank was a 
constitutional agency and instrument for the moneyed opera- 
tions of the Government, it followed necessarily, as it seems 
to us, that it could no more be taxed by State authority, 
than the Treasury Department, the Mint, The Post Ofl5ce, 
or the Army or Navy; and it was upon this ground that the 
Maryland Statute was held to be unconstitutional." 

And, too, his Honor, Judge Comstock, in giving a dis- 
senting opinion in that case, in which he obtained the 
concurrence of this learned Court on the appeal to it, made 
these observations : 

"As to all subjects over which the taxing power of a State 
extends, there are no limitations dependent on the power of 
its exercise. If we admit the right to tax this credit in any 
mode and to any extent, we must admit it in a different mode 



BANK TAX CASE 309 

and to a greater extent. There is no limit to the principle. 
The acknowledgement of the right in any degree involves a 
conflict between the Federal Union and the parts of which it 
is composed; but, as the Union is supreme in the exercise of 
all its powers, including the vital one of borrowing money, 
no authority can be constitutionally opposed to it, which 
confines the exercise of those powers. This is a principle 
which requires the absolute exemption of the National credit 
from State taxation." 

Has the last proposition that I have mentioned been ques- 
tioned, that this Bank, in its capital, in its operations and its 
franchise, was wholly exempt from State taxation? Has 
that been questioned in the decision of the Court below, or in 
the arguments here? I must say that, in the decision of 
the Court below, I do not think it is questioned, although 
there are some observations that go to support the point, 
that the decision with regard to the United States Bank 
stood upon surer grounds, in respect to the character of that 
institution, than the argument about these National Banks 
in respect to their character could stand; but, nevertheless, 
I understand that learned Court to place its decision wholly 
upon the proposition that this tax, not being constitutional 
if laid upon the capital of the Bank and its franchise in bulk, 
by reason of an exemption of both as an accredited agent of 
the Federal Government within its constitutional power, can, 
nevertheless, be assessed upon the shareholders. But one 
of the learned counsel who last addressed the Court in favor 
of the defendants. Judge Parker, in his brief, and orally, has 
somewhat questioned the fact that these Banks, in their 
aggregate and corporate interests, are exempt from State 
taxation. He has presented an analysis of the power of the 
United States Bank as we call it, and the powers and duties 
of these banks, and has intimated that the discrimination is 
wholly unfavorable to the position of these banks; yet, 
if your Honors please, it can hardly come to this, that he 



310 SPEECHES OF WILLIAM MAXWELL EVARTS 

here contends that these banks are not within the exemption 
which the principles laid down by this Court extended to the 
LTnited States Bank; for to say that would be to say that 
these National Banks were not constitutional creations; 
because, as Chief Justice Marshall said in the discussions in 
the case of McCulloch vs. The State of Maryland, if the bank 
is not one of the means and agencies of the Federal Govern- 
ment, which, by mere force of that relation, comes to be pro- 
tected from State taxation, then it has no lawful existence; 
"for who," says he, "can point out the right of the Govern- 
ment of the United States to establish a banking corporation, 
unless it be as a means, an agency and performing some of 
the functions of Government attributed to the National 
authority by the Federal Constitution?" 

So I think we may start with this proposition; that these 
banks, both in respect to the investment and in respect to 
their corporate immunities, are absolutely protected against 
this very rating and assessment and taxation which has been 
enforced against the shareholders. The law of the State of 
New York, under which, during the last year, these taxes 
have been laid, and under which it is proposed to lay them 
in the future, to wit, the " Enabling Act," as it is called, which 
has been placed before your Honors, assumes to levy taxes 
"on all the shares" of the banks in the assessment of taxes 
"in the town or ward where such banking association is 
located and not elsewhere, whether the holder thereof reside 
in such town or ward or not"; and then it provides that, for 
the purpose of collecting such taxes, it shall be the duty of 
every banking association, organized under the Act of Con- 
gress, "to retain so much of any dividend or dividends, be- 
longing to any shareholders, as shall be necessary to pay any 
taxes hereby authorized." LTnder that law, transferring 
taxation from the body corporate and its aggregate invest- 
ments to the owners of proportionate shares of its corporate 
franchise, of its corporate investment, it has been held by 



BANK TAX CASE 311 

the Court of Appeals that, notwithstanding the principles 
which exempt the bank and which the Court of Appeals 
itself recognizes, the shareholders can be made to pay what 
comes to the same in regard to the State, and comes to the 
same in regard to their own pockets. This is supported by 
that Court upon one of two grounds or perhaps upon both: 
first, by the mere authority of the State, without asking 
leave or allowance from this Government; and, secondly, by 
the authority communicated or permitted by the proviso of 
the 41st section of the National Currency Act of June 3d, 
1864. 

Is it not, then, entirely true that there is but one question 
for discussion here, having, if you please, a twofold applica- 
tion, one, to the question of investment in Federal securities, 
and one to the corporate aggregate known as the National 
Bank; and that question is, whether what cannot be done to 
the bank as a whole, can be done, from the peculiar form of 
organization, to the property held by the shareholders; so 
that what the State loses by the immunity that this Court 
has thrown over the investment in the aggregate, is recovered 
by the State, with the full power of taxation over the same 
res, in a different form of approach and attack; that what this 
Court has decided is necessary, is essential, is vital to the 
public credit, in respect of the investment, that what this 
Court has decided is necessary, is essential, is vital to the 
corporate existence, for the public purposes of the Govern- 
ment of the United States, and so must be protected by the 
power of interpreting the Constitution lodged in this Court, 
and the authority of its mandate to be executed by the power 
of the nation, is, nevertheless, to be wrested from Federal 
control to the destruction and ruin of institutions, created 
to be preserved, to the injury and burden of the public 
credit, intended to be advanced, simply by the form of say- 
ing to the tax rater and the tax collector, "lay the tax, that 
you would have exacted from the corporation, distributively 



312 SPEECHES OF WILLIAM MAXWELL EVARTS 

upon the shareholders, and we escape from the Federal Con- 
stitution and the Supreme Court of the United States, by 
the form and manner of assessing and collecting," since there 
is, in the practice of the States, a well-known habit of levying 
taxes indifferently upon the aggregate or upon the share- 
holders, as convenience dictates, always recognizing that, 
whichever form they adopt, they tax the same thing, acquire 
their returns from the same persons, and receive into the 
Treasury the same results. Certainly there never was such 
a discomfiture of fact and substance, of constitutional 
power, and of the firm, strong reasoning of this Court, as 
would result, if this ingenious combination between the 
Legislature of a State and its officers for the assessment 
and collection of taxes can effect this result, and destroy 
what this Court has undertaken to preserve. 

I will first consider, as most briefly and satisfactorily to be 
attended to, the question whether the State, in the taxation 
it insists upon against these shareholders, derives any author- 
ity from the 41st section of the Act of Congress of June 3, 
1864, and I say unquestionably that it does not; and without 
any discussion of whether that section be, as Mr. Webster 
imagined it would not be, unconstitutional, and without 
examining the particular construction of that section, 
whether it be such as to allow these stocks, thus invested in 
Federal securities, to be taxed or not, — irrespective of that, — 
but supposing that the section communicates a license accord- 
ing to its terms, and that, if its terms were observed, this 
tax would be protected and allowable under it, I say that 
there is no credit nor power given to the State in this taxa- 
tion from that section, simply for the reason that it has not 
observed the conditions. The conditions are, that, if the 
State taxes the shares of the national banks, it shall impose 
upon them no other nor higher rate of taxation than it im- 
poses upon the general investment of personal property of 
the State; and, secondly, observing that, that it shall also 



BANK TAX CASE 313 

tax them at no other rate than it imposes specifically upon 
the shares of State banking institutions. It is undisputed 
here, that, under the laws of the State of New York, no rate 
nor tax whatever is laid upon the shares of State banking 
institutions. The statutes of the State of New York say- 
that the shares of State banking institutions shall not be 
taxed to the shareholders, and they are not taxed. 

What, then, is the taxation upon a State banking institu- 
tion in the State of New York.^^ It is a tax upon the aggre- 
gate capital of the bank, exacted from the corporation itself. 
Now, will my learned friends tell me that, although the State 
of New York does not lay any tax upon the shareholders of 
State banks, and so does not observe the condition of the 
41st section of the Act of Congress, it does lay the same rate 
upon the capital of the bank in the hands of the corporation, 
and that that is equivalent to laying it on the shareholders? 
If they will only do that, they will relieve me from the need 
of any argument ; for, if laying a tax on the capital is the same 
as laying it on the shares for the purposes of a State corpora- 
tion, then laying it on the shares is the same as laying it on 
the capital of National Banks, and that is all that I have 
undertaken to prove. But even if they thus surrender the 
practical question to escape from a special difficulty, the 
actual state of the system of taxation and its enforcement 
in the State of New York would not relieve them, because, 
in regard to the tax rated and collected from the corporations 
created by State laws as the persons taxed, and taxed upon 
their aggregate capital, under the decisions of this Court, 
controlling and acted upon in the State of New York, it is 
required, that, before the capital of the State bank presents 
its aggregate for the rating of the tax and its payment, there 
should be a deduction from it of very dollar that is invested 
in Federal securities; so that, as a matter of fact, if, side by 
side with this National Bank in the city of Utica, there were 
a State bank, of the same capital of two hundred thousand 



314 SPEECHES OF WILLIAM MAXWELL EVARTS 

dollars, having that capital invested precisely as the capital 
of this National Bank is invested, in Federal securities, 
while, under the form of taxation laid and enforced by the 
State upon the banks which I represent, there would be 
paid a full rate upon the two hundred thousand dollars, 
distributed upon the shares, there would not be one dollar 
of tax laid or claimed against the State institution, that 
carried on business in the same street, under the author- 
ity of the State of New York. Therefore, put it on matter 
of form or put it on matter of substance, your State author- 
ity lays no taxation on State institutions situated precisely 
as this National institution is situated; and hence, when you 
seek authority by permission and license of the Act of Con- 
gress, the limitations and the conditions must of course be 
observed, and they wholly fail. I ask your Honors' atten- 
tion to a very intelligent and well-considered opinion, given 
in our State, in which it has been held by a branch of the 
Supreme Court, that, conceding that the shares may be tax- 
able for aught that the authority of the United States gives 
under the permission of the 41st section of the National 
Banking Act, yet, for the want of the observance of its con- 
ditions, the law against which we are now remonstrating 
and arguing is wholly invalid, because the State does not 
lay a tax. That learned Court says: 

"The system of taxation adopted by the State, under the 
provision of the Revised Statutes, is, that the laws of the 
State provide for the taxing the capital of a State Bank, and 
the stockholder is not to be taxed, as an individual, upon his 
shares. Therefore there is no State law, making provision 
in any case for taxing the shareholders in State Banks for 
their shares. Consequently the shareholders of National 
banks, or State banks, are not liable to taxation in such 
shares."* 

*\The People vs. The Toiim of Barton^ 29 Howard's New York Practice 
Reports, 371. 



BANK TAX CASE 315 

This your Honors will rest upon, as satisfactory proof 
that the system of taxation is such as I have stated; and the 
authority of that Court — indeed, I think no authority is 
needed for it — is, that, if the permission to tax by the State 
rests upon the 41st section, this tax cannot be sustained, for 
the reason that the conditions are not observed. I shall, 
therefore, for the rest, confine myself to asking what is the 
great and principle question of the case presented to the 
Court, to wit, the assumed power of the State of New York 
to levy taxes upon this fund and capital, by the form and 
means of taxing shareholders, when it cannot do it in any 
other way, — a power against the will of the Government, 
against the decisions of this Court, against any construction 
of the Constitution of the United States that would seek to 
inhibit it. But I ask attention, for one moment, to what I 
assume will be regarded, when a case shall properly arise for 
it, as the proper construction of this proviso. Your Honors 
will notice, that the 41st section provides for the taxation of 
these institutions by the National Government, and then 
goes on to say: 

"'Provided, That nothing in this act shall be construed to 
prevent all the shares in any of the said associations, held by 
any person or body corporate, from being included in the 
valuation of the personal property of such person or body 
corporate, (from being included in the valuation of the per- 
sonal property of such person or corporation) in the assess- 
ment of taxes, imposed by, or under State authority, at the 
place where such bank is located, and not elsewhere; but not 
at a greater rate than is assessed upon any other moneyed 
capital in the hands of individual citizens of such State: 
'provided further, That the tax so imposed, under the laws of 
any State, upon the shares of any of the associations author- 
ized by this act, shall not exceed the rate imposed upon the 
shares in any of the banks organized under authority of the 
State where such association is located." 



316 SPEECHES OF WILLIAM MAXWELL EVARTS 

I apprehend that no one can claim, that there is anything 
in this act that had relation to exemptions, except such as 
grew out of its creating these public institutions agencies of 
the Government. In other words, the exemption, created 
or inferable from this act, would be the exemption that 
belonged to these banks as agencies; and there is nothing in 
this act that has any connection with the exemption of the 
United States securities. When, therefore, you are constru- 
ing this proviso, which is intended to save from the operation 
of an inferential exemption from this act, you must not carry 
your proviso or saving clause beyond the principal provision 
which it is designed to define, not to avoid. It means, then, 
that nothing in the nature of these institutions, as agencies 
or instruments of the authority of the United States under 
the Constitution, shall save them from taxation on their 
property, in the same way as other moneyed capital may be 
taxed by States; but it was under other laws of the United 
States that the immunity of the investment in Federal 
securities was claimable, and was created. The Congress 
of the United States, adopting and following the judgment 
of this Court, enacted, in the Statute of February 25, 1862, 
that the Federal securities, whether held by individuals, 
corporations, or associations, should be exempt from all tax- 
ation under State or municipal authority. It is, then, under 
that and similar statutes, that this form and application of 
immunity is derived; and this saving clause does not operate 
on that act. It merely means, "You may tax the invest- 
ments in the corporate property made by these corporations, 
as you might do, if the immunity of Federal agency was not 
over them." When you come to the question, whether, 
under cover of this saving clause against a particular effect 
of the statute, you have opened to the States taxation upon 
Federal securities owned by these corporations, when you 
have closed it against taxation in any and every other form 
of ownership, you are proposing to give to this section a 



BANK TAX CASE 317 

force which it never, in legislative intent, could have been 
designed to have, and which, on any sound principle of 
construction, it cannot bear. Its meaning, so far as the 
question of these investments by these banks in the Federal 
securities goes, would be to put them, in that respect, on 
the same footing with an individual having his moneyed 
capital invested in that manner, and on the same footing 
in which a State corporation, having its capital invested in 
these securities, would stand. Is it to be said, that, when 
all the moneyed capital in the hands of individuals and 
State corporations, that is invested in the United States 
securities, is protected against taxation by the State, as 
soon as one of the National banks invests in United States 
securities, it has opened and exposed to taxation those 
very securities, which are exempt by the law of 1862, by 
force of a proviso which says that the banking act shall 
not be construed to exempt the National banks from State 
taxation? 

I think, therefore, that, on any construction of that section 
(even if, by conformity of the State to the rate of taxation on 
State bank shares that it has laid on national bank shares, 
the permission of that section could be invoked in favor of 
this tax), these three banks would still be exempt from the 
payment of any tax on that portion of their capital which was 
invested in the United States securities, for the reason that 
I have stated to the Court. But if this proviso is not before 
the Court for adjudication because it has not been followed 
by the State, it will be for your Honors to consider how far 
that point can be disposed of in your judgment. 

It really seems as if we were reduced to but a very narrow 
region of reasoning, if we are so far advanced successfully. 
It must come to this, that the State, having no power (for 
this law gives none) to pass the act which it has actually 
passed, — no power derived from the Federal government, — 
assumes a right to tax these investments and tax this capital 



318 SPEECHES OF WnXIAM MAXWELL EVARTS 

in the form of shares, although it cannot tax them, as has 
been so often urged, in the aggregate or corporate capacity. 
The argument can rest upon nothing but this: it asserts a 
distinction between the capital stock of the corporation in 
the aggregate, and all the shares of such capital stock as sub- 
jects of taxation; such a distinction between these two de- 
scriptions of property (I say two descriptions of the same 
thing), that a tax levied upon the shares is constitutional, 
although a tax levied upon the aggregate is unconstitutional. 
It asserts another distinction, a distinction between the cor- 
poration and the shareholders or members of the corporation ; 
for are not shareholders members of the corporation? Is not 
the corporation composed of members.'' When all the mem- 
bers of a corporation cease to exist does not the corporation 
cease? It asserts a distinction between the corporation and 
the shareholders or members of the corporation, as taxable 
persons, to the effect that a tax upon, or in respect of, the 
same property, distributed upon the corporate members, is 
constitutional, though, laid upon the corporate body, it is 
unconstitutional. I have looked in vain through the briefs 
and listened in vain to the arguments of my learned friends, 
to find any other ground for them to discriminate for the 
constitutionality of the tax on the shareholders, admitting 
the unconstitutionality of the tax on the corporation and its 
property, except in one or the other of these two forms. 

I will take up first the question of investments. I say 
that the proposition, that the investment of a corporation in 
Federal securities of the whole or a part of its capital stock 
cannot be made subject to State taxation, laid upon its 
capital stock, and yet that the same investments may be 
subjected to State taxation, laid upon the divisions or parts 
of its capital stock known as shares, cannot be maintained. 
The first reason I assign for this is, because the attempted 
distinction overlooks the legal character and grounds of the 
exemption. The exemption is of the res, of the subject of 



BANK TAX CASE 319 

the securities. It has no relation to any form of enjoyment 
or ownership of them. It says that this subject of property 
shall not yield a tax, and the exemption is laid for the sake 
of the investment, and not from partiality to any owner, 
or any form of ownership. It is that the thing itself may be 
better, that it may be worthier, that it may be more valuable, 
the occasions and the duties of the Federal Government re- 
quiring that it should be made so and kept so, and it has no 
more concern with any form of ownership, as matter of 
policy or as matter of personal protection, than it has wath 
the remotest considerations from the topic. It is that this 
thing shall have the virtue in it of being worthier than 
other property, because it is exempted from State taxation. 
When you are talking about the different relations which 
the shareholder and the corporation have to the corporate 
property, and the different relations that the corporation 
and the shareholders have to what are called shares, you 
are talking of what is interesting and important in some views 
of the law; but you are talking of a subject that has no rela- 
tion to this question, — whether, for the purposes of maintain- 
ing the exemption of this investment from taxation, the 
exemption is to attend it in every form of substantial owTier- 
ship; for it is only through forms of substantial ownership 
that the worthiness of the thing is to be preserved. There 
is no such separation possible as leaving the securities as 
worthy as before, but disparaging their purchase, because in a 
certain form they cannot be owned without being taxable. 
But it also overlooks the legal ground and character of 
taxation. Taxation pertains to the subject, the res, and 
has nothing to do with ownership and cares nothing about it. 
It is wholly immaterial to the taxing power w^hat the form of 
ownership may be; it is the value that it is after. In w^iatever 
owner it finds that value, the taxing power will extract it by 
proceeding in rem, if you please, and not care who is the 
owner; or, if convenient, it collects the tax through the med- 



320 SPEECHES OF AVILLIAM MAXWELL EVARTS 

ium of the owner, and the coercion is only to make him pay it. 
The taxing power, in pursuing its method of taxing, is no 
respecter of persons or forms or title. It is the thing it 
looks to; and when land is the subject of taxation, as we all 
know, the exaction of the tax or enforcement of it is wholly 
unconcerned with titles, incumbrances, liens, divisions of 
equity and at law in the enjoyment of the owner. It 
taxes the property, and sells it by an absolute and paramount 
title, dealing with the thing itself. The relation is the same 
towards personal property, although there may not be 
occasion or opportunity to apply practically the same efifect. 
I say, then, you overlook the nature of the distinction, when 
you say that the same thing is to be extracted from taxa- 
tion in one form of enjoyment and not in another. 

Now, suppose that a government, wishing to invite pop- 
ulation or to improve the domestic habits of its people, 
establishes an arrangement promising freedom from taxa- 
tion to all dwelling houses that should be built. The dwell- 
ing houses are built, the law being that dwelling houses 
shall be exempt from taxation. Can you tax the owner of a 
dwelling house on the rent he gets from his tenant? Is not 
that taxing his dwelling house? Is the promise performed, 
is the faith kept, when you say, "We do not tax your dwelling 
house, we do not tax you on the fee of your dwelling house, we 
tax you on the rent of your dwelling house"? You tax the 
dwelling house in one of the forms of its owner's enjoyment 
of it as property. Can you tax the tenant and say, "We 
tax you in proportion to the rent that you pay to your 
landlord"? That is taxing the dwelling house; that is 
taxing the house — the thing which has been procured by the 
public interests, upon the promise that it should not bear 
taxation. Is not the taxation of the occupation of the house, 
whether it be imposed upon the landlord or upon the tenant, 
a tax upon the house? Certainly it is. And this shows us 
that taxation and exemption, correlative terms, touch and 



BANK TAX CASE 321 

adhere to the subject, and have no concern with owner- 
ship, title, property, or enjoyment. All title, ownership, 
property, enjoyment, is lesser than, and is included in, the 
matter that is the subject of property, and that swallows 
up title, interests, legal and beneficial relations; and when, 
in the sense of taxation and the sense of exemption, the 
subject has been rescued from burdens, nobody can feel 
them. Has the subject been rescued, if anybody can feel 
the burden in consequence of the subject.? Has the subject 
been saved from contribution, if anybody, in consequence 
of connection with the subject, has to contribute.'^ Certainly 
not. You must find some other relation than that of owner- 
ship, whether it be legal or equitable, that you tax, or else 
you tax the property itself. 

This, too, exalts the forms and phrases of the law above 
the law itself. The United States Government have thought 
it necessary to give to their securities this credit, and thus 
to send them out into the whole nation and to the world. 
They have not broken their faith by any legislation. They 
have not broken their faith by any construction of legis- 
lation. They have not broken their faith by any adjudi- 
cation of this court up to this time, whatever the Court of 
New York may have thought. Twice corrected by this 
Court on these subjects, now, with legal effrontery, not 
personal, that learned Court comes here and says : 

"You have told us over and over again that we cannot 
tax United States securities; cannot tax them in the measure 
of anybody's property; cannot tax them in the form of 
value in property at a nominal, and not a real, standard; 
but we have found one shape in which we can tax them in 
spite of you, — if a national bank owns them, we can make the 
shareholders pay the tax." 

This, I say, stultifies the acts of Congress and nullifies 
the decisions of this Court on that subject. How do you 
get a tax on these securities and make a shareholder in a 

23 



322 SPEECHES OF WILLIAM MAXWELL EVARTS 

bank pay it? The whole capital of the bank is free. That 
is admitted. It is free by its own nature, by its being 
invested in these securities. It is free, because it has been 
decided that the States cannot tax this capital. That is 
all admitted. But it is said, "We tax the shareholders." 
They must tax the shareholders upon this property, this 
value, either because they do not own it, or because they 
do. You may tax it because they do not o^vn it, as you 
would tax A on property of B, and tell him that, since B 
is not able to pay your tax, you tax A on his property. 
That, however, is not to be imputed. Then you tax the 
shareholders because they do own this property, because 
they have some ownership in this investment; and yet the 
brief of my learned opponents admits that the owner of 
United States securities cannot be taxed by the States for 
them. 

Let us look at that a little more closely. Suppose that A 
holds, as trustee, $100,000 worth of the securities of the 
United States, and is asked to give an account of his taxa- 
ble property in his relation as trustee, and he states that the 
trust fund is all invested in United States securities. That 
exempts him from taxation. Then the tax-gatherer hunts 
up the cestui que trust and says, "What have you?" The 
answer is, "My only income is from a trust fund in the hands 
of A, my trustee; he is the man to pay the tax." "Oh, we 
cannot tax that, because he holds United States securities; 
what is your beneficial property?" "It is $100,000." 
"Then we will tax you." "Well, but," the cestui que trust 
says, "I do not own the property; A is the legal owTier, my 
trustee; why not tax him, if anybody is to be taxed? I do 
not own the property; if anybody is to pay the tax, the 
owner, the trustee, is to pay." "No," says the tax-gatherer, 
"we cannot tax the owner; he is exempt on account of the 
investment; but we tax you, as the cestui que trust, because 
you are the beneficial owner and not the legal owner, and 



BANK TAX CASE 323 

you shall pay the tax." I imagine that, if the State should 
pursue that method, this Court would correct it and say, 
"that this $100,000, in its legal estate, in its equitable estate, 
in its legal control, in its beneficial enjoyment, is free from tax- 
ation." Yet no man can distinguish between a legal owner- 
ship in United States securities, and an ownership in those 
same securities lodged in a form and organization by which 
twenty people part with their legal control over them, and turn 
themselves into the enjoyment of them as beneficial or equi- 
table owners. Take this case: twenty men meet together, 
with $5,000 in Federal securities each as private property, 
and put them in bodily and make the capital of $100,000, 
invested in them, of a bank organized under this act, and 
come out what.^*- — Organized into a bank, with their Federal 
securities owTied by the bank, of which they are the owners, 
of which they are the members, of which they are the stockr 
holders, the legal institution holding the legal property. 
Has that transmutation made the securities taxable that 
were not taxable before, when the exemption adheres to the 
securities, and not, by name, to any form of ownership.'^ 

But, if your Honors please, the proposition that the cor- 
porations, created and performing their public functions as 
agencies of the Federal Government, cannot be taxed by 
the State on their capital, franchise, or operations, and yet 
that the shareholders, in respect of their membership and 
ownership of the corporate body, franchise, and capital, 
can be taxed, is self -repugnant and illusory; and, in connec- 
tion with this point, let me look for a moment and briefly, 
though a subject inviting for illustration, upon the frame 
and scheme of the National Bank system, one of the most 
remarkable creations in the progress of this nation, one of 
the most essential means of carrying this nation through its 
late trials, and saving it from the disasters and convulsions 
which attend a restoration of peace in the financial circum- 
stances of the nation and its citizens. What is it, and what 



324 SPEECHES OF WILLIAM MAXWELL EVARTS 

is the whole idea of it? What is the whole service of it? 
What is the whole genius of it? It is this: it is to call into 
the fiscal operations of the Government, in the execution 
of its powers and duties under the Constitution, the capital, 
the resources, the processes of private interest and business, 
and employ them as agencies and means in the public ser- 
vice. It is the connection of the special duty and function 
of the General Government with the living circulation of the 
great body of the nation, over which it is the Government. 
Government might have loan oflBces, loan agencies, sub- 
Treasuries, and multiply them in every village, and they 
would be a dead organization of the Government, mere 
functionaries; but, by this system, by a happy improve- 
ment upon everything we had ventured or imagined in our 
financial experience, the Government seized upon the living 
energies of the American people and made them, by their 
voluntary organizations, agents in the public service of 
the country, just as distinctly, just as usefully, as, in calling 
upon the citizens to enroll their persons in the military 
service of the country, you have, instead of a dead organi- 
zation, a living body of citizen soldiers. This is what the 
bill did, and what it wanted to do, and what it successfully 
and wonderfully accomplished. That was the thing; it 
was the private persons, and the private interests, and the 
private processes, and the private energy of the people, that 
it wanted to unite in this public service. That was the sub- 
stance, and the rest was nothing but form. It was to com- 
bine or organize the collective private capital and the re- 
sources of the nation under the well-known form of legal 
incorporation, as the most convenient, if not the necessary 
form of accomplishing public objects. Now, as I have said 
of an army, it is the array that constitutes the army. It 
is the power, it is the array, that you want; and the rest: — 
of organization, of articles of war, or arrangement of ranks 
and grades, and all the machinery of control, is for the array, 



BANK TAX CASE 325 

and not the array for it ; and so it is the array under this or- 
ganized banking system that is useful. It is the array of the 
private enterprise, capital, and business, that is wanted; and 
the corporate form, a well-known arrangement for manag- 
ing property, is adopted, because it is suitable for this, just 
as it is for the purely private operations and affairs of life. 
Upon this mere statement, which cannot be contravened, 
it is apparent that the instrumentality adopted by Congress 
for executing these powers of the Government, has for its 
essential element this associated capital and these personal 
exertions, and that the corporation is but the form of wield- 
ing and operating the capital. Then, as I have said, it is 
not the artificial person that is the object of the Government's 
care, or that is the principle or substance of its object. 
That is but a form, and as a form alone it is to be allowed 
to operate and to have its consequences. If immunity from 
State taxation be the prerogative and the necessity of these 
legal organizations, it is the immunity of the contributed 
capital and of the contributors that is needed. If the im- 
munity is essential for the Government's purpose to main- 
tain the corporation, it is essential for the Government's 
purpose that this immunity should rest upon those who are 
to contribute their capital and find their inducements to 
volunteer in this service of the Government; and any pro- 
tection or immunity, that shall occupy itself and confine it- 
self to the protection of the corporate capacity, and leave 
the individuals, the members, unprotected, would soon ex- 
hibit the fact that it is the members who make up the 
corporation, and not the corporation which secures its own 
masters and members. All the arguments which we have 
heard about the bank and the shareholders, that the bank 
holds its property by its own title, and that no shareholder 
has any title in it; that all the shareholders together can- 
not assign nor transfer nor convey any of its property, 
but that a share in a corporation is a new form of prop- 



326 SPEECHES OF WILLIAM MAXWELL EVARTS 

erty; and that it belongs to the shareholder, and that the 
corporation does not own that, and the corporation cannot 
sell that, cannot convey that — perfectly sound, as familiar 
as any other of the first elements of the law — insisted 
upon here to carry certain consequences, have no effect 
whatever on those consequences. As to the subject matter 
of this controversy, they can have no effect. Various 
definitions have been given about the relation of a share- 
holder to a corporation. My friends seemed to prefer 
that loosest connection, which makes the shareholder the 
holder of a chose in action or right of action against a cor- 
poration, the same as a creditor; and they pushed it so far 
as to say that they think, on the whole, that a creditor has 
a nearer and closer right to the property of a corporation 
than a shareholder has, because he will have to be first paid 
when the affairs of the corporation are closed; and the 
learned Court below has adopted that idea to some extent. 
These familiar doctrines are not in dispute here. It is 
for the very reason that a corporate organization has these 
consequences, that a corporate organization has been 
selected by Congress as the means of wielding this public 
operation that is essential to the service of the Government. 
It is for the very reason of these effects, that it has adopted it, 
to wit; that a form is provided in our law, whereby the vari- 
ous owners of property may combine to manage it in a 
common agency, having this great principle, that its iden- 
tity shall be preserved, although individual owners may dis- 
pose of their interests; and that the public will, or major 
voice, or administrative delegation, shall govern the com- 
mon property for the common good, instead of having it 
stand always on the individual right of every man to have 
his own will carried out. That is all there is to a corpora- 
tion. You may talk about it forever; it is wholly a form, 
known in our law, whereby men may put their property to- 
gether and keep it in that form of ownership and organi- 



BANK TAX CASE 327 

zation for purposes of convenience and nothing else; and 
nobody owns it but they, after they have done that. It is 
purely a short, elliptical expression to say that the corpora- 
tion owns it. It is owned by the shareholders; it is owned 
by the owners of the property. As against each other, 
they have committed it and themselves to a form of organi- 
zation, which permits of the disposition of the property and 
the maintenance of the title, with the advantages that I 
have named. But to say that there are two properties, to 
wit, $200,000 of investment that belongs to the corporation, 
and another $200,000 that belongs to the shareholders, is 
perfectly absurd. To say that this united ownership in a 
subject of property, when the subject of property is free 
from taxation, leaves the individual shareholders subject to 
taxation on their shares, — I mean when it is exempt from 
taxation by an authority stronger than that which under- 
takes to divert the form of taxation, — is simply saying that 
the paramount government is master of the question of the 
taxation of the property, and the State government is yet 
final master of the question, by being master of form and 
device. This Government is no master of the question 
whether this property shall be taxed, if the State Govern- 
ment is master of the question of any form or contrivance, 
which, by paltering about corporations and shareholders, 
and shares being personal property, individual property, 
and the corporation being aggregate property, can exact 
a tax from the property. Therefore I say, that no rule of 
law has ever asserted, and no refinements of argument can 
ever maintain, that the corporation has its capital invested 
in certain property, and the shareholders have their shares 
represented by other and different property. When the res 
cannot be taxed, I want vou to find some other res than the 
shareholders, which can be taxed. Can the property of the 
corporation perish, and that of the shareholders survive? 
The rule of law is '''res peril domino''; the owner loses prop- 



328 SPEECHES OF WILLIAM MAXWELL EVARTS 

erty wlien it is destroyed. The shareholders lose their 
property when the capital of the corporation is sunk. That 
we all know, and some of us have felt; and we never heard 
of such a distinction, as that the corporation had one property 
and we had another property ; that the corporation could not 
be taxed on its, but we might on ours. 

Now, put this question: suppose, as may be done unless 
there be some distinction in our States, — and there is not in 
the Constitution of New York or in the Constitution of most 
of the States, — that the ordinary rate of taxation is three 
per cent.; that is the rate in New York City on capital; 
three per cent, is laid on the aggregate capital of a bank, 
and three per cent, upon the shareholders, on the par value 
of their shares; in that case are two values taxed, or is it 
one value that is taxed twice? Does that property pay the 
usual rate of single taxation, three per cent., or does it pay 
six per cent? It pays $12,000; $6,000 exacted from the cor- 
poration and $6,000 from the shareholders. Is that three 
per cent, on $400,000, or is it six per cent on $200,000? It 
is a question of one value as a subject of taxation. However 
they may be distributed on interests, they are really the 
different forms of owning the same thing. Suppose that a 
Government, interested to invite capital in favor of manu- 
factures, declares that it will not tax the capital of manufac- 
turing companies that shall be formed under it; and, having 
got them formed, it taxes the shareholders on their shares. 
It says, "We cannot tax the capital; we promised not to tax 
the capital; but we tax your shares." Would that be allow- 
able? All of this illustrates, that it is form and arrangement 
of ownership in the same thing that is meant to be taxed in 
one form and cannot be taxed in another form, but still is 
the same thing; and that the exemption is not formal and 
modal, but is of the thing itself. 

We are prepared now for a further proposition of general 
reasoning, which I am able to support also by the distinctest 



BANK TAX CASE 329 

and most explicit authority. If one of the States issues 
a charter to a corporation, with a clause in it exempting 
the capital stock from taxation for a limited term, and 
within that term lays a tax upon the shareholders, will 
not this Court correct that legislation as a breach of the 
clause of the Constitution against inpairing the obligation 
of contracts? I submit that the premises of that question 
are the premises of this question. We have a provision of 
the Constitution of the United States that the obligation of 
contracts shall not be violated by the States; we have a 
State making an obligatory contract that it will not tax 
the bank, and it afterwards taxes the shareholders. Does 
it not thereby violate that contract? What are the prem- 
ises of this question? The premises of this question are, 
that the Constitution of the United States protects this 
aggregate investment and the aggregate capital, franchise, 
and operations of these banks from State taxation, and the 
State taxes the shares ; does that violate, or not, the constitu- 
tional protection? I submit that, to a legal mind, this 
question carries its own answer; and it is only from the 
peculiarity of the jurisdiction of this Court, under the 
Constitution of the United States, in relation to sovereign 
communities, that we are enabled to have, in the form of a 
lawsuit and a legal decision, a question that would usually 
be left to the discussions of public faith and the maintenance 
of the honor of a State. In the third volume of Howard's 
Reports, this whole subject is disposed of by the unanimous 
judgment of this Court. Having handed that case to my 
learned opponents before their argument. Judge Parker 
ventured to make some remark upon it by saying that it 
turned upon contract; and they conceded that, under this 
clause of the Constitution, if the State had bound itself 
not to tax the bank, it could not tax the shares. Now, with 
great respect to my learned friend, conceding that, he might 
as well concede, that, if the State of New York, under the 



330 SPEECHES OF WILLIAM ^IAX^^'ELL EVARTS 

Constitution, cannot tax the bank, it cannot tax the shares; 
and no lawyer can draw a discrimination between the two 
cases. Now let us be sure that this case, of so grave conse- 
quences to the discussion before us, is as applicable as I have 
stated it. It is the case of Gordon vs. The Appeal Tax 
Court, 3 Howard, 133, an appeal from the Court of Appeals 
of the State of ^laryland. I will read the section of exemp- 
tion of the Maryland statute : 

"That upon any of the aforesaid banks accepting of, and 
complying with, the terms and conditions of this act, the 
faith of the State is hereby pledged not to impose any 
further tax or burden upon them." 

This is the phrase of the exemption; the State is pledged 
"not to impose any further tax or burden upon them, 
during the continuance of their charters under this act," 
and that is all; there is not a word about stockholders there. 
The bank accepted this law, complied with its provisions, 
and some years afterwards a law was passed taxing the 
shareholders for their shares, as component parts of their 
general personal property. Let us see how counsel stated 
the question. On page 139 the counsel for the shareholder 
stated it thus : 

"The tax of 1841 clashes with the exemption. It is laid 
on everything which constitutes the property of the bank, 
because, in a schedule, everything, even the franchise, goes 
to make up the aggregate value of the stock; and the tax 
is laid on the cash value of the stock. By the 17th section, 
the assessors are directed to value it at the market price. 
But the market price is governed by the value of all the 
different species of property held by the bank, including even 
the franchise, because a purchaser looks at all these when 
about to invest. It is impossible to separate that portion 
of the tax which falls upon the franchise, and, as the legis- 
lature has covered the whole, the entire tax must fall." 
The counter proposition, at pages 141 to 143, is precisely 



BANK TAX CASE 331 

what is laid dowTi here that the bank could not be taxed; 
but this is not a taxation of the bank, — this is a taxation of 
the shares, as component parts of the property of the individ- 
ual, in common with the other taxable property of the State, 
against which it has not precluded itself by a correlative 
obligation not to tax the bank. It was insisted upon there, 
as here, that the difference of title made the difference of 
substance; that the stock was personal property, transfer- 
able by and belonging to its owner; and that the stock- 
holders do not own the property of the bank and cannot 
convey any title to it. In other words, we had the same 
disputable facts and law about the relations of stockholders 
and stock, capital and shares, that are insisted upon here 
as regards the modal administration of the res owned; 
and that was urged upon the Court as a reason for saying 
that a tax on the shareholders was not a violation of the 
contract not to tax the bank; but the answer of the Court 
was, "That is not the way to keep the contract you have 
made; the subject matter, the purpose, the object, the 
promise, the result, all make your promise cover the property 
in its beneficial, and not its formal ownership, and the prom- 
ise is broken when you tax the shares of the bank"; and his 
Honor, Judge Wayne, delivering the unanimous opinion of 
the Court, put the subject on the same grounds; nay, its 
reasons and its phrases will answer for a decision of this 
cause. After that, a similar case arose before a very learned 
court in New Jersey, which is reported in 3 Zabriskie, 484. 
Chief Justice Green, a judicial authority well known to 
this Court, in giving the opinion of the Supreme Court of 
New Jersey, said: 

"When an incorporated company is, by its charter, 
exempt from taxation, the stock of the company, in the hands 
of the stockholders, cannot be taxed. It represents, and is, 
the title to the property of the company, and is therefore 
included in the exemption of the charter." 



332 SPEECHES OF WILLIAM MAXWELL EVARTS 

There the exemption of the charter was in regard to the 
railroads of New Jersey. The form of it, I think, was this: 
Fish was taxed upon his shares in the railroads, as a part of 
his personal property in the aggregate; it was put down at 
its value with all the other items of his property, and he con- 
tested the valuation, insisting that that portion of his prop- 
erty which was represented by the shares, was not taxable. 
The exemption of the stock was found in the charter of the 
company, which provided that it should pay ten cents to 
the State on each passenger, "and that no other tax or im- 
post shall be levied or assessed upon said company." The 
State did not assess the company, but assessed the share- 
holders. The Supreme Court of New Jersey said that could 
not be done, and your Honors were not troubled with that 
case because you had disposed of the Maryland case. This 
also confirms, by judicial authority, what I insist upon, 
that taxation upon the bank, and again upon the shares, is 
nothing but double taxation. In the same opinion the 
New Jersey Court say: 

"The stock of incorporated banks, although the bank pays 
a tax on its capital, may be taxed in the hands of stock- 
holders if authorized by the legislature, although it is a 
second tax on the same property. Double taxation may be 
unequal, oppressive, and unjust; but it is not prohibited by 
any constitutional provision, and it is in the discretion of 
the legislature, and courts cannot declare void a statute, 
within the constitutional power of the legislature, because 
its operation may appear unjust and oppressive." 

Of course this topic had relation to another item of taxa- 
tion, not coming within the protection of the promise of 
the charter and the Constitution of the United States. 
The Chief Justice says that we cannot strike down a tax 
that our legislature has put upon shares, because it has also 
put it on the stock; it is two taxations of the same thing; 
but, as our Legislature can put a double rate upon one thing 



BANK TAX CASE 333 

and a single rate upon another, however oppressive it may 
be, it is not for us to interfere. 

There seems then, if your Honors please, to be very little 
reason for regretting the absence of judicial authorities, 
upon what must be considered the principal question of 
the case. The solution is very simple. The relation of a 
corporation and of the stockliolders, in respect to the prop- 
erty which constitutes but one subject of ownership and of 
taxation, is a twofold relation to a single capital or value. 
The relation of legal and equitable title in the same land is 
the best analogy. So long as a tax is laid upon the property, 
no variety, diversity, nor complexity of title can increase 
the property or the tax. You cannot make the subject of 
taxation any larger by reason of these different titles that 
are carved out of it, or these different arrangements for its 
management. If Congress means to protect this capital 
under the Constitution, and this Court has held that it has 
authority so to do, then it means to do it in a way that prac- 
tically saves it from the tax; and, so long as the exemption 
is applied to the property, it will exempt every form and 
every title in that property. The statutes of our State, in 
an unbroken course of legislation, have recognized this 
fact: that stock in the aggregate, and the corporation 
as a person to be taxed, represent the same property as 
the shares of stock and the shareholders as persons to be 
taxed; and they have varied, as his Honor Judge Nelson 
well knows, in the course of years, their forms of applying 
taxation to corporations, as seemed to them most con- 
venient. Under the statute of 1813, and until the change 
by the Revised Statutes, all the interests of corporations in 
the State of New York were taxed upon the shareholders in 
respect of their shares, as included in the bulk of their prop- 
erty. From the period of the Revised Statutes, a change 
was made by collecting the bulk of the tax from the bulk of 
the property; and as a part of the same system of assessing 



334 SPEECHES OF WILLIAM MAXWELL EVARTS 

and collecting the tax, it was in so many words enacted, 
that no shares of stockholders, in corporations that were 
taxed by the State, should themselves pay any tax. When 
the stockholders paid the tax, under the old system, there 
was no tax on the corporation; when the corporation paid 
the tax, under the new system, there was none on the stock- 
holders, by the arrangement of the law which treated the 
form clearly as modal, for the convenience of the State, for 
the security of the collection of the tax, and for the consid- 
erations of policy which prefer secondary rather than direct 
taxation, which latter our systems have avoided as much as 
possible. There is no reason to hold, that, in the State of 
New York or anywhere else, there are any principles of law, 
by which these propositions that are established can pos- 
sibly be disturbed, I have referred in my brief to a 
couple of cases in the Massachusetts Reports, where this 
question is well considered and presented ; that it is all one 
subject of taxation, and is taxable, under the system of the 
laws, either to the persons or to the corporation, as may be 
found convenient. 

If the Court please, the exemption from taxation, enjoyed 
by the National Banks under the Constitution and Laws 
of the United States, is of the capital by reason of its invest- 
ment in Federal securities; and again of its capital, its fran- 
chise, and its operations, all that it is in character, in prop- 
erty, and in faculty, by reason of its being an instrument of 
the General Government in the exercise of its constitutional 
powers. As the learned Judge Comstock says in the case in 
23 New York Reports, "no corporation aggregate that the 
world ever saw ever owTied anything but its capital, property, 
and its franchise." Nothing is added, by the creation of a 
corporation, to the property that the contributors put in by 
way of capital, except the franchise. That is added, making 
the artificial person a creature of law; but the franchise is 
all that has been added. Here we have these bodies, that 



BANK TAX CASE 335 

are in their capital exempt, and in their franchise exempt. 
What is there about them that can be taxed? This left 
nothing that constitutes an element of value, or of posses- 
sion, or of property, to be taxed. If the franchise had come 
from the State, if the franchise were taxable by the State, 
as the creature of the State, you might find something in the 
constitution of the corporation (although its capital be 
exempted if invested m United States securities), that 
would endure State taxation. They might tax the franchise 
inordinately, or moderately; they made the franchise, and 
they may tax it; and the investment of the capital in United 
States securities does not exempt the taxation of the fran- 
chise from the power of the State; and that was the distinct- 
tion which was made by some observations of Mr. Justice 
Nelson in the first bank tax case in 2 Black, referring to the 
state of the law in New York. Franchise may bear a tax, 
he said. The Legislature changed their law, but did not 
come up to the point of taxing the franchise, which was taxing 
for the right to be, and with reference to nothing else. The 
right to be a bank, the right to continue from year to year 
to be a bank, may be taxed. That was all that was open 
under the observation of this Court. They did not put the 
tax on the franchise, but they put the tax on the capital, on a 
valuation that did not make it necessary to find what it 
was really worth, but took a nominal value for it; and 
thought they had avoided the judgment of this Court 
by that contrivance. They had not taxed the right of the 
corporation to be; they had taxed its capital upon a nominal 
instead of a real, value. The Court said, "You may have 
any form of valuation you choose; but, whatever your form 
of valuation, you must exempt United States securities 
from it." That is the case in 2 Wallace. Now the contriv- 
ance here is, that of having a bank, with its franchise from 
the Federal Government, with its i)roperty protected under- 
Federal law, with its operations and its capital protected 



336 SPEECHES OF \^^LLIAM MAXWELL EVARTS 

as agents and instruments of the Government, incapable 
of taxation, withdrawn from the taxable property of the 
State, and they pursue all these into the divided shares, 
and exact the tax upon them distributively. 

What is a stockholder in a corporation? He is nothing, 
and has nothing, in a corporation, except by his proportion 
in the capital stock, and his participation in the franchise. 
It is to the stockholders by name that the franchise is given, 
they being natural persons, that they should have the fran- 
chise to be an artificial person. Is not that a form in which 
the natural persons are, in the purpose and apparatus of the 
law, used as one? There is neither fragment nor fig- 
ment for a tax to rest upon, when there is that extent of 
exemption. 

Now, if the Court please, on the general question, as some- 
thing has been said, so inconsiderately, about the compara- 
tive magnitude or connections of the interest with the 
government of the old United States Bank, and of this many 
headed institution, distributed all through the country, let 
me call your Honors' attention to the importance of the 
relations of these banks, even in the single subject of the 
distribution of the public debt. There was issued in one 
year the whole bulk, in three series, of the seven-thirty 
currency notes, eight hundred and thirty millions in twelve 
months; and, of that issue of the Federal debt, these Na- 
tional Banks took and distributed seven hundred and thirty- 
six millions, leaving to the Government, in its official or- 
ganizations of treasury, sub-treasury and special agencies, 
only ninety-four millions out of eight hundred and thirty- 
millions to be so disposed of; illustrating thus what I have 
ventured to suggest was the genius of this institution. 
Now, to say of these two great governments. Federal and 
State, standing against one another, under the Constitu- 
tion, with their relations adjudicated by this Court, that 
all these relations are suddenly changed by the interven- 



BANK TAX CASE 337 

tion of this corporate form of a National Bank, and that 
the State becomes the master of the two governments, by 
taking away from the Federal Government what it has 
reserved to itself, by giving back to the State Governments 
what they had lost under the legislation of the country, 
this is to make the corporation, — the mere form, — the 
master of the substance, and controller of those political 
and public relations. It is like the Genie of the bottle; 
when the seal is up, he becomes the master of servants. 
This contrivance of the National Banks, instituted for other 
and additional public purposes, and serving these great 
public needs, immediately takes in its hands hundreds of 
millions of Federal stocks with which to serve the Govern- 
ment, and in its hands, and in the hands of nobody else in 
this country, they can be taxed through the medium of 
shareholders! At this moment these banks hold six hun- 
dred and twenty-two millions of dollars of the Federal 
securities of the United States, — a third of the debt that is 
out in any other shape than that of mere currency, perhaps 
more than a third, for I have not the statistics in my mind ; 
and yet that mass of public debt, free by impression on its 
face from taxation by the States, free in the hands of every 
individual, of every corporation, of every association, must 
contribute such taxes as the States may choose to impose, 
discriminating or destructive or otherwise, simply because 
one agency of the Government is helping it in the advance- 
ment of its interests in another public matter, to wit, the 
debt! 

If the Court please, it will not avail anything to meet 
these propositions by the argument that the States, by 
their natural authority, have dominion for taxation over 
every subject of property and every person within their 
jurisdiction. This right and this power, as necessary parts 
of the State's sovereignty, are conceded; for it is idle to talk 
of taxation as being a special prerogative of sovereignty. It 

24 



338 SPEECHES OF WILLIAM MAXWELL EVARTS 

is sovereignty. It is the sovereign that taxes. It is as 
universal as the sovereign. "The decree went out that 
all the world should be taxed," because the Roman empire 
extended over what was then called the world. Taxation 
takes all you have. Put taxation and conscription together 
and it is the sovereignty over the person and the property, 
to the extent of the jurisdiction of the State. But the taxa- 
tion goes no further than sovereignty; and whatever im- 
pedes or qualifies or displaces the sovereignty of the States, 
impedes, qualifies, displaces, taxation by the States. What 
power there is in taxation to destroy, is shown by the recent 
Act of Congress inimical to the continuance of the State 
banks, which taxes their circulation, after a certain prospec- 
tive period, ten per cent. If a State has power to tax, 
there is no limit. That you have decided over and over 
again. It can tax these shares discriminately, if it chooses; 
hostilely, destructively, fatally, if you concede the power. 
You say, with jealous preservation of the Constitution, 
"There is no such power"; and the State says, "True, but 
we will tax the shares or parts hostilely, destructively, 
fatally"; and you are called upon to say that they can; you 
are called upon to surrender, as I say, to this dominant 
fiction in law, the personality of a corporation. As by the 
decisions is expressly stated, whenever the Government 
has called the property of the citizens into the service of 
the United States, in the performance of a public duty under 
the Constitution as an instrument and an agency, that be- 
comes an instrument of the United States, and exempted 
from State taxation, unless it be compatible with the public 
interests that the Government of the United States should 
concede it. There are but two methods to deal with this 
subject. One is that which the State of New York has al- 
ways avowed, and, I believe, honestly intended to conform 
to. Looking at it from the side of the State, it may differ 
from the view that is taken on the side of the Federal Gov- 



BANK TAX CASE 339 

eminent, but still the principles laid down in 23 New York 
Reports by Chief Judge Denio are, that, when there is a 
conflict, the adjudications of the Supreme Court of the 
United States are final as to the supremacy of the Federal 
power, and that the only question for a State Court, as new 
circumstances one after another present new cases, is to see 
whether there is a conflict, and to yield. There is but one 
other method; and that is the method of South Carolina, in 
the decisions that are cited on the briefs. The argument of 
Mr. Grimke for the United States, than which none abler was 
ever made on this question, was never answered by Mr. 
Legare, nor was it ever answered by the Court, The deci- 
sion was put upon the ground, that, if there was a conflict, 
the State of South Carolina could not help it, but it governed 
what was within its own dominions. That was the proposi- 
tion : — that the reasoning of the Supreme Court, by the mouth 
of the great Chief Justice, was vicious, unsound, dangerous. 
Its only viciousness was, that the supremacy of the Union 
over the States was asserted; its only unsoundness was, 
that the supremacy of the Union over the States was as- 
serted; its only danger was, that the supremacy of the Union 
over the States was asserted; and this, the South Carolina 
method of dealing with the conflict, as we all know at last, 
is war. 



V 

ARGUMENT, IN DEFENCE OF THE PRESIDENT, 
BEFORE THE SENATE OF THE UNITED 
STATES SITTING AS A COURT UPON THE 
IMPEACHMENT OF ANDREW JOHNSON, 
PRESIDENT OF THE UNITED STATES 

NOTE 

On the 21st day of February, 1868, President Johnson addressed 
a note to the Secretary of War, Edwin M. Stanton, stating that, 
by virtue of the power and authority vested in the President under 
the Constitution and Laws, Mr. Stanton was removed from the 
office of Secretary of War, and he was directed to turn over the office 
to General Lorenzo Thomas, who had been authorized by the 
President to act as Secretary of War ad interim. This action of the 
President was considered by the House of Representatives as in 
direct contravention of what was known as the Tenure of Office 
Act, passed March 2, 1867, which had undertaken to regulate the 
tenure of office of appointees in the Executive Departments of the 
Government. It was further considered as displaying, on the part 
of the President, the deliberate purpose and intent to set himself 
above the Constitution and beyond the Law. 

The removal of Secretary Stanton and the appointment of Gen- 
eral Thomas to act as Secretary ad interim brought about the culmi- 
nation of the struggle between Congress and the President, that 
had been in progress for almost the whole period of Mr. John- 
son's occupancy of the presidency. This contest, between the 
Executive and the Legislative branches of the Government, arose 
from the effort to solve the great problem of the reconstruction 
of the Southern States and their re-establishment in the Union 
after the close of the Civil War. All of this forms an instructive 
chapter in our Constitutional history and the passage of the 
Tenure of Office Act was itself but one of the steps taken by Con- 
gress to assure its supremacy. 

Immediately following this action of the President, and on Feb- 

340 



IMPEACHMENT OF PRESIDENT JOHNSON 341 

ruary 24, the House of Representatives, by the overwhehiiing 
vote of 126 to 47, impeached the President for high crimes and mis- 
demeanors. 

The President's action in the removal of Secretary Stanton and 
the appointment of General Thomas not only brought the strug- 
gle to a head, but formed the gravamen of the Articles of Impeach- 
ment that were presented at the bar of the Senate on March 4, 1868. 

These Articles were eleven in number. The first eight articles 
are based wholly on this action of the President. The ninth 
known as the Emory Article, charged a conspiracy between the 
President and General Emory to violate a recent Act of Congress 
that required all orders and instructions relating to military opera- 
tions, issued by the President or Secretary of War, to be issued 
through the General of the army and, in case of his inability, 
through the next in rank. The tenth article related to a number 
of speeches delivered by the President in the summer and fall of 
1866, in which he had given vent to his anger at the attitude of 
Congress, in most unwise and hasty expressions of contempt for 
the legislative branch of the Government as it was then composed. 
The eleventh article was a statement in a different form of the 
substance of many of the averments in the preceding articles, and 
in general charged an effort on the part of the President to obstruct 
and prevent the due execution of the laws of Congress. 

After answer and replication the actual trial before the Senate 
sitting to try the impeachment, with the Chief Justice of the 
United States presiding, began on March 30, 1868. 

The Managers chosen by the House of Representatives to con- 
duct the prosecution in its behalf were: John A. Bingham of Ohio, 
George S. Bout well of Massachusetts, James F. Wilson of Iowa, 
Benjamin F. Butler of Massachusetts, Thomas Williams of Penn- 
sylvania, Thaddeus Stevens of Pennsylvania, and John A. Logan 
of Illinois. 

The Counsel for the President were Henry Stanbery (the Attor- 
ney-General) , Benjamin R. Curtis, William M. Evarts, Thomas 
A. R. Nelson and William S. Groesbeck; Jeremiah S. Black, also 
retained by the President, had retired from the case before the 
trial began. 

The case was opened by General Butler, in behalf of the Man- 



342 SPEECHES OF WILLIAM MAX^VELL EVARTS 

agers, who proceeded in the conduct of the trial throughout — in 
the examination and cross-examination of witnesses. Upon the 
close of the case against the President, Judge Curtis made the 
opening argument for the defense on April 9 and 10, and, when 
the taking of testimony was finished, the closing arguments by 
the Managers and by Counsel for the President began. These 
arguments occupied the attention of the Court of Impeachment 
continuously for a period of two weeks, from April 22 to May 6. 

Mr. Logan filed with the Court a printed argument, all the 
others being oral and in the following order : Mr. Boutwell spoke 
April 22d and during a part of the following day, when Mr. Nelson, 
of Counsel for the President, began his closing argument, conclud- 
ing April 24th. On Saturday, April 25, Mr. Groesbeck spoke 
for the President. On Monday, April 27, Mr. Stevens spoke for 
the Managers, succeeded by Mr. Williams who concluded his argu- 
ment the following day. 

Mr. Evarts began his argument on the afternoon of April 28, 
continuing on the three succeeding days, closing on Friday the 
first of May. The Attorney -General, Mr. Stanbery, then pro- 
ceeded with the final Argument for the President, concluding 
the next day. Mr. Bingham, in his argument of three days, May, 
4, 5 and 6, on behalf of the Managers, made the final presenta- 
tion to the Senate. 

The voting on the articles did not begin until ten days later. 
May 16, when a vote was taken on the eleventh article, resulting 
in 35 voting "guilty" and 19 "not guilty." Thus the two-thirds 
vote required by the Constitution for conviction was not obtained. 
An adjournment was taken to May 26 and votes taken on the 
second and third articles with the same result as before. The 
Senate, sitting as a Court of Impeachment, then adjourned sine 
die, taking no action upon any of the remaining articles. 

Mr. Evarts, besides making the closing argument in the Presi- 
dent's behalf, which follows, had been most active in the conduct 
of the defence owing to the illness, during the trial, of the Attor- 
ney-General. 

Six years after this historic trial, Mr. Evarts thus alludes to it, 
in his Eulogy on Chief Justice Chase, with especial reference to 
the conduct of the Chief Justice as presiding at the trial: 



IMPEACHMENT OF PRESIDENT JOHNSON 343 

"The first political impeachment in our constitutional history, 
involving, as it did, the accusation of the President of the United 
States, required the Chief Justice to preside at the trial before the 
Senate, creating thus the tribunal to which the Constitution had 
assigned this high jurisdiction. Beyond the injunction that the 
Senate, when sitting for the trial of impeachments, should be 'on 
Oath ' the Constitution gave no instruction to fix or ascertain the 
character of the procedure, the nature of the duty assigned to the 
specially-organized court, or the distribution of authority between 
the Chief Justice and the Senate. The situation lacked no feature 
of gravity — no circumstance of solicitude — and the attention of 
the whole country, and of foreign nations, watched the transaction 
at every stage of its progress. No circumstance could present a 
greater disparity of political or popular forces between accuser and 
accused, and none could be imagined of more thorough commit- 
ment of the body of the court — the Senate — both in the interests 
of its members, in their political feeling, and their prejudgments; 
all tending to make the condemnation of the President, upon all 
superficial calculations, inevitable. The efl'ort of the Constitution 
to guard against mere partisan judgment, by requiring a two-thirds 
vote to convict, was paralyzed by the complexion of the Senate, 
showing more than four-fifths of that body of the party which had 
instituted the impeachment and was demanding conviction. To 
this party, as well, the Chief Justice belonged, as a founder, a 
leader, a recipient of its honors, and a lover of its prosperity and its 
fame. The President, raised to the office from that of Vice-Presi- 
dent — to which alone he had been elected — by the deplored event 
of Mr. Lincoln's assassination, was absolutely without a party, in 
the Senate or in the country; for the party whose suffrages he had 
received for the vice-presidency was the hostile force in his im- 
peachment. And to bring the matter to the worst, the succession 
to all the executive power and patronage of the Government, in 
case of conviction, was to fall into the administration of the Presi- 
dent of the Senate — the creature, thus, of the very court invested 
with the duty of trial and the power of conviction. 

"Against all these immense influences, confirmed and inflamed 
by a storm of party violence, beating against the Senate-house 
without abatement through the trial, the President was acquitted. 



344 SPEECHES OF WILLIAM MAXWELL EVARTS 

To what wise or fortunate protection of the stabiUty of govern- 
ment does the people of this country owe its escape from this great 
peril? Solely, I cannot hesitate to think, to the potency — with a 
justice-loving, law-respecting people — of the few decisive words of 
the Constitution which, to the common apprehension, had im- 
pressed upon the transaction the solemn character of trial and con- 
viction, under the sanction of the oath to bind the conscience, and 
not of the mere exercise of power, of which its will should be its 
reason. In short, the Constitution had made the procedure judi- 
cial, and not political. It was this sacred interposition that stayed 
this plague of political resentments which, with their less sober and 
intelligent populations, have thwarted so many struggles for free 
government and equal institutions. 

"Over this scene, through all its long agitations, the Chief Jus- 
tice presided, with firmness and prudence, with circumspect com- 
prehension, and sagacious forecast of the vast consequences which 
hung, not upon the result of the trial as affecting any personal 
fortunes of the President, but upon the maintenance of its char- 
acter as a trial — upon the prevalence of law, and the supremacy of 
justice, in its methods of procedure, in the grounds and reasons of 
its conclusion. That his authority was greatly influential in fixing 
the true constitutional relations of the Chief Justice to the Senate, 
and establishing a precedent of procedure not easily to be sub- 
verted; that it was felt, throughout the trial, with persuasive force, 
in the maintenance of the judicial nature of the transaction; and 
that it never went a step beyond the office which belonged to him — 
of presiding over the Senate trying an impeachment — is not to be 
doubted. 

"The President was acquitted. The disappointment of the 
political calculations, which had been made upon what was felt by 
the partisans of impeachment to be an assured result, was un- 
bounded; and resentments rash and unreasoning were visited upon 
the Chief Justice, who had influenced the Senate to be judicial, and 
had not himself been political. No doubt this impeachment trial 
permanently affected the disposition of the leading managers of 
the Republican party towards the Chief Justice, and his attitude 
thereafter toward that party, in his character of a citizen. But 
the people of the country never assumed any share of the resent- 



IMPEACHMENT OF PRESIDENT JOHNSON 345 

ment of party feeling. The charge against him, if it had any shape 
or substance, came only to this: That the Chief Justice brought 
into the Senate, under his judicial robes, no concealed weapons of 
party warfare, and that he had not plucked from the Bible, on 
which he took and administered the judicial oath, the command- 
ment for its observance." 

ARGUMENT 
First Day, April 28, 1868 

I am sure, Mr. Chief Justice and Senators, that no man 
of a thoughtful and considerate temper would wish to take 
any part in the solemn transaction wdiich proceeds to-day 
unless held to it by some quite perfect obligation of duty. 
Even if we were at liberty to confine our solicitudes within 
the horizon of politics; even if the interests of the country 
and of the party in power, and if duty to the country and 
duty to the party in power (as is sometimes the case, and 
as public men so easily persuade themselves is, or may be, 
the case in any juncture), were commensurate and equiva- 
lent, who will provide a chart and compass for the wide, 
uncertain sea that lies before us in the immediate future? 
Who shall determine the currents that shall flow from the 
event of this stupendous political controversy; who measure 
their force; and wdio assume to control the storms that it 
may breed? 

But if we enlarge the scope of our responsibility and of our 
vision, and take in the great subjects that have been con- 
stantly pressing upon our minds, who is there so sagacious 
in human affairs, wdio so confident of his sagacity, who so 
circumspect in treading among grave responsibilities and 
so assured of his circumspection, who so bold in his forecast 
of the future, and so approved in his prescience, as to see, 
and to see clearly, through this day's business? 

Let us be sure, then, that no man should be here as a 
volunteer or lift a little finger to jostle the struggle and con- 



346 SPEECHES OF \VILLIAM MAXWELL EVARTS 

test between the great forces of our Government, of which 
we are witnesses, in which we take part, and which we, in 
our several vocations, are to assist in determining. 

Of the absolute and complete obligation which convenes 
the Chief Justice of the United States and its Senators in 
this Court for the trial of this impeachment, and of its authen- 
tic commission from the Constitution, there can be no 
doubt. So, too, of the deputed authority of these honorable 
managers, and their presence in obedience to it, and the 
attendance of the House of Representatives itself in aid of 
their argument and their appeal, there is as little doubt. 
The President of the LTnited States is here, in submission to 
the same Constitution, in obedience to it, and in the duty 
which he owes by the obligation he has assumed to preserve, 
protect, and defend it. The right of the President to appear 
by counsel of his choice makes it as clearly proper, under the 
obligations of a liberal profession, and under the duty of a 
citizen of a free state of sworn fidelity to the Constitution 
and the laws, that we should attend upon his defence; for 
though no distinct vocation and no particular devotion to 
the more established forms of public service hovers our 
presence, yet no man can be familiar with the course of the 
struggles of law, of government, of liberty in the world, not 
to know that the defence of the accused becomes the trial 
of the Constitution and the protection of the public safety. 

It is neither by a careless nor capricious distribution of 
the most authentic service to the state that Cicero divides 
it among those who manage political candidacies, among 
those who defend the accused, and among those who in the 
Senate determined the grave issues of war and peace and all 
the business of the State; for it is in facts and instances that 
the people are taught their Constitution and their laws, 
and it is by fact and on instances that their laws and their 
Constitutions are upheld and improved. Constitutions 
are framed; laws established; institutions built up; the pro- 



IMPEACHMENT OF PRESIDENT JOHNSON 347 

cesses of society go on until at length by some opposing, 
some competing, some contending forces in the State, an indi- 
vidual is brought into the point of collision, and the clouds 
surcharged with the great forces of the public welfare burst 
over his head. It is then that he who defends the accused, 
in the language of Cicero, and in our own recognition of the 
pregnant instances of English and American history, is held 
to a distinct public service. 

As, then, duty has brought us all here to this august pro- 
cedure and has assigned to each of us his part in it, so through 
all its responsibilities and to the end we must surrender our- 
selves to its guidance. Thus following, our footsteps shall 
never falter or be misled ; and leaning upon its staff, no man 
need fear that it will break or pierce his side. 

The service of the constitutional procedure of impeach- 
ment in our brief history as a nation has really touched none 
of the grave interests that are involved in the present trial. 
Discarding the first occasion in which it was moved, being 
against a member of the Senate, as coming to nothing im- 
portant, political or judicial, unless to determine that a 
member of this body was not an officer of the United States; 
and the next trial, wherein the accusation against Judge 
Pickering partook of no qualities except of personal delin- 
quency or misfortune, and whose result gives us nothing to 
be proud of, and to constitutional law gives no precedent 
except that an insane man may be convicted of crime by a 
party vote; and the last trial of Judge Humphreys, where 
there was no defence, and where the matters of accusation 
were so plain and the guilt so clear that it was understood 
to be, by accused, accusers, and court but a mere formality, 
and we have trials, doubtless of interest, of Judge Chase 
and of Judge Peck. Neither of these ever went for a mo- 
ment beyond the gravity of an important and solemn accusa- 
tion of men holding dignified, valuable, eminent, public 
judicial trusts; and their determination in favor of the ac- 



348 SPEECHES OF WILLIAM MAXWELL EVARTS 

cused left nothing to be illustrated by their trials except that 
even when the matter in imputation and under investiga- 
tion is wholly of personal fault and misconduct in office, 
politics will force itself into the tribunal. 

But what do we behold here? Why, Mr, Chief Justice 
and Senators, all the political power of the United States 
of America is here. The House of Representatives is here 
as accuser; the President of the LTnited States is here as the 
accused; and the Senate of he United States is here as 
the court to try him, presided over by the Chief Justice, under 
the special constitutional duty attributed to him. These 
powers of our Government are here, this our Government is 
here, not for a pageant or a ceremony ; not for concord of ac- 
tion in any of the duties assigned to the Government in the 
conduct of the affairs of the nation, but here in the struggle 
and contest as to whether one of them shall be made to bow 
by virtue of constitutional authority confided to the others, 
and this branch of the political power of the United States 
shall prove his master. Crime and violence have placed 
all portions of our political Government at some disadvantage. 
The crime and violence of the rebellion have deprived this 
House of Representatives and this Senate of the full attend- 
ance of members that might make up the body under the 
Constitution of the United States, when it shall have been 
fully re-established over the whole country. The crime and 
violence of assassination have placed the executive office in 
the last stage of its maintenance under mere constitutional 
authority. There is no constitutional elected successor of 
the President of the United States, taking his power under 
the terms of the Constitution and by the authority of the 
suffrage; and you have now before you the matter to which 
I shall call your attention, not intending to anticipate here 
the discussion of constitutional views and doctrines, but 
simply the result upon the Government of the country which 
may jflow from your determination of this cause under the 



IMPEACHMENT OF PRESIDENT JOHNSON 349 

peculiar circumstances in which, for the first time, too, in 
the history of the Government, a true political trial takes 
place. 

If you shall acquit the President of the United States 
from this accusation all things Mall be as they were before. 
The House of Representatives will retire to discharge their 
usual duties in legislation, and you will remain to act with 
them in those duties and to divide with the President of the 
United States the other associated duties of an executive 
character which the Constitution attributes to you. The 
President of the United States, too, dismissed from your 
presence uncondemned, will occupy through the constitu- 
tional term his place of authority, and however ill the course 
of politics may go, or however well, the Government and its 
Constitution will have received no shock. But if the Presi- 
dent shall be condemned, and if by authority under the 
Constitution necessarily to be exerted upon such con- 
demnation, he shall be removed from office, there will be 
no President of the United States; for that name and title 
is accorded by the Constitution to no man who has not re- 
ceived the suffrages of the people for the primary or the al- 
ternative elevation to that place. A new thing will have 
occurred to us; the duties of the office will have been annexed 
to some other office, will be discharged virtute officii and by 
the tenure which belongs to the first office. Under the 
legislation of the country early adopted, and a great puzzle 
to the Congress, that designation belongs to this Senate 
itself to determine, by an officer of its own gaining, the right 
under the legislation of 1792 to add to his office conferred 
by the Senate the performance of the duties of President of 
the United States, the two offices running along. What- 
ever there may be of novelty, whatever of disturbance, in 
the course of public affairs thus to arise from a novel situa- 
tion, is involved in the termination of this cause; and there- 
fore there is directly proposed to you, as a necessary result 



350 SPEECHES OF WILLIAM MAXWELL EVARTS 

from one determination of this cause, this novelty in our 
Constitution : a great nation whose whole frame of Govern- 
ment, whose whole scheme and theory of politics rest upon 
the suffrage of the people will be without a President, and 
the office sequestered will be discharged by a member of the 
body whose judgment has sequestered it. 

I need not attract your attention, long since called to it 
doubtless, in your own reflections, more familiar than I am 
with the routine, to what will follow in the exercise of those 
duties; and you will see at once that the situation, from cir- 
cumstances for which no man is responsible, is such as to 
bring into the gravest possible consequences the act that 
you are to perform. If the President of the United States, 
elected by the people, and having standing behind him the 
second officer of the people's choice, were under trial, no 
such disturbance or confusion of constitutional duties, and 
no such shock upon the feehngs and traditions of the people, 
would be effected; but, as I have said, crime and violence, 
for which none of the agents of the Government are respon- 
sible, have brought us into this situation of solicitude and of 
difficulty. 

It will be seen, then, that as this trial brings the legisla- 
tive power of the Government confronted with the executive 
authority, and its result is to deprive the nation of a Presi- 
dent and to vest the office in the Senate, it is indeed the trial 
of the Constitution; over the head and in the person of 
the Chief Magistrate who fills the great office the forces of 
this contest are gathered, and this is the trial of the Con- 
stitution; and neither the dignity of the great office which he 
holds, nor any personal interest that may be felt in one so 
high in station, nor the great name and force of these ac- 
cusers, the House of Representatives, speaking for "all the 
people of the United States," nor the august composition of 
this tribunal, which brings together the Chief Justice of the 
great court of the country and the Senators who have States 



IMPEACHMENT OF PRESIDENT JOHNSON 351 

for their constituents, which recalls to us in the mere eti- 
quette of our address the combined splendors of Roman and 
of English jurisprudence and power— not even this spectacle 
forms any important part in the watchful solicitude with 
which the people of this country are gazing upon this pro- 
cedure. The sober, thoughtful people of this country, never 
fond of pageants when pageants are the proper thing, never 
attending to pageants when they cover real issues and inter- 
ests, are thinking of far other things than these. 

Mr. Chief Justice, it is but a few weeks since the great 
tribunal in which you habitually preside, and where the law 
speaks with authority for the whole nation, adjourned. 
Embracing, as it does, the great province of international 
law, the great responsibility of adjusting between State 
and General Government the conflicting interests and pas- 
sions belonging to our composite system, and with deter- 
mining the limits between the co-ordinate branches of the 
Government, there is one other duty assigned to it in which 
the people of the country feel a nearer and a deeper interest. 
It is as the guardian of the bill of rights of the Constitution, 
as the watchful protector of the liberties of the people against 
the encroachments of law and Government, that the people 
of the United States look to the Supreme Court with the 
greatest attention and with the greatest affection. That 
Court having before it a subject touching the liberty of the 
citizen finds the hamstring of its endeavor and its energy to 
interpose the power of the Constitution in the protection of 
the Constitution cut by the sharp edge of a congressional 
enactment, and in its breast carries away from the judgment- 
seat the Constitution and the law, to be determined, if ever, 
at some future time and under some happier circumstances. 

Now, in regard to this matter, the people of the United 
States give grave attention. They exercise their supervi- 
sion of the conduct of all their agents, of whom, in any form 
and in any capacity and in any majesty, they have not yet 



352 SPEECHES OF WILLIAM MAXWELL EVARTS 

learned to be afraid. The people of this country have had 
nothing in their experience of the last six years to make them 
fear anybody's oppression, anybody's encroachments, any- 
body's assaults, anybody's violence, anybody's war. Mas- 
ters of this country, and masters of every agent and agency 
in it, they bow to nothing but the Constitution, and they 
honor every public servant that bows to the Constitution. 
And at the same time, by the action of the same Congress, 
the people see the President of the United States brought 
as a criminal to your bar, accused by one branch of Congress, 
to be tried by the other, his office, as I have said, to be put in 
commission and an election ordered. He greatly mistakes 
who supposes that the people of the United States look 
upon the office of President, the great name and power that 
represents them in their collective capacity, in their united 
power, in their combined interests, with less attachment 
than upon any other of the departments of this Government. 
The President is, in the apprehension and in the custom of 
the people of the United States, the magistrate, the author- 
ity for whom they have that homage and that respect 
which belong to the elective office. His oath of office is as 
familiar to the people of this country as it is to you, for 
they heard it during the perils of the war from lips that they 
revered, and they have seen its immense power under the 
resources of this Constitution of theirs, and supported by 
their fidelity to maintain the contest of this Government 
against all comers to sustain the Constitution and the law. 
It has been spoken of here as if the President's oath were 
simply an oath to discharge faithfully the duties of his office, 
and as if the principal duty of the office was to execute the 
laws of Congress. Why, that is not the President's oath; 
that portion of it is the common oath of everybody in au- 
thority to discharge the duties of his office; but the peculiar 
oath of the President, the oath of the Constitution, is in the 
larger portion of it which makes him the sworn preserver, 



IMPEACHMENT OF PRESIDENT JOHNSON 353 

protector, and defender of the Constitution itself; and that is 
an office and that is an oath which the people of the United 
States have intrusted and exacted to and from no other 
pubHc servant but the President of the United States. 
And when they conferred that power and exacted that duty 
they understood its tremendous responsibihties, the tremen- 
dous oppositions it might encounter, and they understood 
their duty, impHed in the suffrage that had conferred the 
authority and exacted the obHgation, to maintain him in it — 
to maintain him in it as against foreign aggression, as against 
domestic violence, as against encroachments from whatever 
quarter, under the guise of congressional or whatever 
authority, upon the true vigor of the Constitution of the 
United States. 

President Lincoln's solemn declaration, upon which he 
gained strength for himself and by which he gave strength to 
the people, "I have a solemn vow registered in heaven 
that I will preserve, protect, and defend the Constitution 
of the United States," carried him, and carried the people 
following him, through the struggles, the dangers, the vicis- 
situdes of the rebellion; and that vow, as a legend, now 
adorns the halls of legislation in more than one State of the 
Union. This oath of the President, this duty of the Presi- 
dent, the people of this country do not in the least regard 
as personal to him; but it is an oath and a duty assumed 
and to be performed as their representative, in their interest, 
and for their honor; and they have determined, and they 
will adhere to their determination, that the oath shall not 
be taken in vain, for that little phrase, "to the best of my 
ability," which is the modest form in which the personal 
obligation is assumed, means, when conferred upon the 
ability of the President, the ability of the country; and most 
magnificently did the people pour out its resources in aid of 
that oath of President Lincoln; and so when the shock 
comes, not in the form of violence, of war, of rebellion, but 

25 



354 SPEECHES OF ^\TLLIAM MAXWELL EVARTS 

of a struggle between the forces of the Government in regard 
to constitutional authority, the people of the United States 
regard the President as then bound to the special fidelity of 
watching that all the departments of this Government obey 
the Constitution, as well as that he obeys it himself. 

They give him no assum])tion of authority beyond the 
laws and the Constitution, but all the authority and all the 
resources of the laws and the Constitution are open to him, 
and they will see to it that the President of the United 
States, whoever he may be, in regard to the office and its 
duty, shall not take this oath in vain if they have the power 
to maintain him in its performance. That indeed the 
Constitution is above him, as it is above all of the servants 
of the people, as it is above the people themselves until 
their sovereignty shall choose to change it, they do not doubt. 
And thus all their servants. President and Congress and 
whatever authority, are watched by the people of the United 
States in regard to obedience to the Constitution. 

And, not disputing the regularity, the complete authen- 
ticity, and the adequate authority of this entire procedure, 
from accusation through trial and down to sentence, the 
people yet claim the right to see and to know that it is duty 
to the Constitution observed and felt throughout that brings 
the result, whatever it may be. Thus satisfied, they adhere 
to the Constitution, but they do not purpose to change it. 
They are converts of no theories of congressional omnipo- 
tence. Thev understand none of the nonsense of the Consti- 
tution being superior to the law except that the law must be 
obeyed and the Constitution not. They know their Gov- 
ernment, and they mean to maintain it; and when they 
hear that this tremendous enginery of impeachment and 
trial and threatened conviction or sentence, if the law and 
the facts will justify it, has been brought into play, that this 
power which has lain in the Constitution, like a sword in its 
sheath, is now drawn, they wish to know what the crime is 



IMPEACHMENT OF PRESIDENT JOHNSON 355 

that the President is accused of. They understand that 
treason and bribery are great offences, and that a ruler 
guilty of them should be brought into question and deposed. 
They are ready to believe that, following the law of that 
enumeration, there may be other great crimes and mis- 
demeanors touching the conduct of Government and the 
welfare of the State that may equally fall within the juris- 
diction and the duty. But they wish to know what the 
crimes are. They wish to know^ whether the President has 
betrayed our liberties or our possessions to a foreign State. 
They wish to know whether he has delivered up a fortress or 
surrendered a fleet. They wish to know whether he has 
made merchandise of the public trust and turned authority 
to private gain. And when informed that none of these 
things are charged, imputed, or even declaimed about, they 
yet seek further information and are told that he has re- 
moved a member of his cabinet. 

The people of this country are familiar with the removal 
of members of cabinets and all persons in authority. That, 
on its mere statement, does not strike them as a grave offence, 
needing the interposition of this special jurisdiction. Re- 
moval from office is not, with the people of this country, 
especially those engaged in politics, a terror or a disagree- 
able subject; indeed it may be said that it maintains a great 
part of the political forces of this country; that removal 
from office is a thing in the Constitution, in the habit of 
its administration. I remember to have heard it said that an 
old lady once summed up an earnest defence of a stern 
dogma of Galvanism, that if you took away her " total de- 
pravity" you took away her religion and there are a great 
many people in this country that if you take away removal 
from office you take away all their politics. So that, on 
that mere statement, it does not strike them as either an 
unprecedented occurrence or as one involving any great 
danger to the State. 



356 SPEECHES OF ^^^LLIAM MAXWELL EVARTS 

"Well, but how comes it to be a crime?" they inquire. 
Why, Congress passed a law, for the first time in the history 
of the Government, undertaking to control by law this 
matter of removal from office; and they provided that if the 
President should violate it, it should be a misdemeanor, and 
a high misdemeanor; and now he has removed, or undertaken 
to remove, a member of his cabinet, and he is to be removed 
himself for that cause. He undertook to make an ad interim 
Secretary of War, and you are to have made for you an ad 
interim President in consequence! 

That is the situation. "Was the Secretary of War re- 
moved?" they inquire. No; he was not removed, he is still 
Secretary, still in possession of the department. Was 
force used? Was violence meditated, prepared, attempted, 
applied? No, it was all on paper, and all went no further 
than making the oflficial attitude out of which a judgment 
of the Supreme Court could be got. And here the Congress 
intercepting again and in reference to this great office, this 
great authority of the Government, instead of the liberty 
of the private citizen, recourse to the Supreme Court, — has 
interposed the procedure of trial and impeachment of the 
President to settle, by its own authority, this question be- 
tween it and the Executive. The people see and the people 
feel that under this attitude of Congress there seems to be a 
claim of right and an exercise of what is supposed to be 
a duty, to prevent the Supreme Court of the United States 
interposing its serene judgment in the collisions of Govern- 
ment and of laws upon either the framework of the Gov- 
ernment or upon the condition and liberty of the citizen. 
And they are not slow to understand, without the aid of the 
very lucid and very brave arguments of these honorable 
managers, that it is a question between the omnipotence of 
Congress and the supremacy of the Constitution of the 
United States; and that is an issue on which the people 
have no doubt, and, from the beginning of their liberties. 



IMPEACHMENT OF PRESIDENT JOHNSON 357 

they have had a clear notion that tyranny was as likely to 
be exercised by a Parliament or a Congress as by anybody 
else. 

The honorable managers have attracted our notice to the 
principles and the motives of the American Revolution as 
having sho^vn a determination to throw off the tyranny of a 
king, and they have told us that that people will not bend 
its neck to the usurpations of a President. That people 
will not bend its neck to the usurpations of anybody. But 
the people of the United States know that their fathers went 
to war against the tyranny of Parliament, claiming to be 
good subjects of the king and ready to recognize his author- 
ity, preserving their own legislative independence, and against 
the tyranny of Parliament they rebelled; and, as a neces- 
sity finally of securing liberty against Parliament, severed 
their connection with the mother country; and if any hon- 
orable member of either house will trace the working of the 
ideas in the convention that framed the Constitution of the 
United States, he will discover that inordinate power which 
should grow up to tyranny in the Congress was more feared, 
more watched, more provided against than any other 
extravagance that the workings of our Government might 
be supposed possible to lead to. 

Our people, then, are unwilling that our Government 
should be changed; they are unwilling that the date of our 
Constitution's supremacy should be fixed, and that any 
department of this Government should grow too strong or 
claim to be too strong for the restraints of the Constitution. 
If men are wise they will attain to what was sagacious, and 
if obeyed in England might have saved great political shocks, 
and which is true for our obedience and for the adoption of 
our people now as it was then. Said Lord Bacon to Buck- 
ingham, the arbitrary minister of James I: 

As far as it may lie in you, let no arbitrary power be intruded; 
the people of this kingdom love the laws thereof, and nothing will 



358 SPEECHES OF ^VILLIAM MAXWELL EVARTS 

oblige them more than a confidence of the free enjoyment of them; 
what the nobles upon an occasion once said in Parliament, Nolumus 
leges Angliae mutari, is imprinted in the hearts of all the people. 
(1 Bacon's Works, p. 712.) 

And in the hearts of all the people of this country the su- 
premacy of the Constitution and obedience to it are im- 
printed, and whatever progress new ideas of parliamentary 
government instead of executive authority dependent upon 
the direct suffrage of the people may have been made with 
theorists or with statesmen, they have made no advance 
whatever in the hearts or in the heads of the people of this 
country. 

I know that there are a good many persons who believe 
that a written constitution for this country, as for any other 
nation, is only for a nascent state and not for one that has 
acquired the pith and vigor of manhood. I know that it is 
spoken of as the swathing bands that may support and 
strengthen the puny limbs of infancy, but shame and en- 
cumber the maturity of vigor. This I know, and in either 
house I imagine sentiments of that kind have been heard 
during the debates of the last two Congresses; but that is 
not the feeling or the judgment of the people; and this in 
their eyes, in the eyes of foreign nations, in the eyes of the 
enlightened opinion of mankind, is the trial of the Consti- 
tution, not merely in that inferior sense of the determina- 
tion whether its powers accorded to one branch or other of 
the Government have this or that scope and impression and 
force, but whether a government of a written constitution 
can maintain itself in the forces prescribed and attributed by 
the fundamental law, or whether the immense passions and 
interests of a wealthy and powerful and populous nation will 
force asunder all the bonds of the Constitution, and in the 
struggle of strength and weight the natural forces, uncurbed 
by the supreme reason of the state, will determine the suc- 
cess of one and the subjection of the other. 



IMPEACHMENT OF PRESIDENT JOHNSON 359 

Now, Senators, let us see to it that in this trial and this 
controversy we understand what is at stake and what is to 
be determined. Let us see to it that we play our part as it 
should be played and under the motives and for the interests 
that should control statesmen and judges. If, indeed, this, 
our closely cinctured liberty, is at last to loosen her zone, 
and her stern monitor, law, debauched and drunken with 
this new wine of opinion that is crushed daily from ten 
thousand presses throughout this land, is to withdraw its 
guardianship, let us be counted with, those who, with averted 
eye and reverent step backward, seek to veil this shameless 
revelry, and not with those who exult and cheer at its 
excesses. Let us so act as that what we do and what we 
purpose and what we wish shall be to build up the State, to 
give new stability to the forces of the Government, to cure 
the rash passions of the people, so that it may be said of 
each one of us, ad rempublicam firmandam et ad stabiliendas 
vires et sanandum populum omnis ejus purgehat institutio. 

Thus acting, thus supported, doubt not the result shall be 
in accord with these high aspirations, these noble impulses, 
these exalted duties; and whether or no the forces of this 
Government shall feel the shock of this special jurisdiction 
in obedience to law, to evidence, to justice, to duty, then 
you will have built up the Government, amplified its author- 
ity, and taught the people renewed homage to authority. 

And now, this brings me, Mr. Chief Justice and Senators, 
to an inquiry asked very early in this cause with emphasis 
and discussed with force, with learning, and with persis- 
tence, and that is, is this a court.'' I must confess that I have 
heard defendants arguing that they were coram non judice 
before somebody that was not a judge, but I never heard till 
now of a plaintiff or a prosecutor coming in and arguing that 
there was not any court, and that his case was coram non 
judice. Nobody is wiser than the intrepid manager who 
assumed the first assault upon this Court, and he knew that 



360 SPEECHES OF WILLIAM MAXWELL EVARTS 

the only way he could prevent his cause from being turned 
out of court was to turn the court out of his cause and if the 
expedient succeeds his wisdom will be justified by the result, 
and yet it would be a novelty. It is said: 

There is no word in the Constitution which gives the slightest 
coloring to the idea that this is a court, except that in this particu- 
lar case the Chief Justice must preside. 

So that the Chief Justice's gown is the only shred or patch 
of justice that there is within these halls; and it is only acci- 
dentally that that is here, owing to the peculiar character 
of the inculpated defendant. 

This is a Senate to hold an inquest of office upon Andrew Johnson. 

And I suppose, therefore, to find a verdict of "oJBSce 
found." Certainly, it is sought for. I have not observed 
in your rule that each Senator is to rise in his place and say 
"office found," or "oflSce not found." Probably every 
Senator does not expect to find it. Your rules, your Consti- 
tution, your habit, your etiquette call it a court, assume that 
there is some procedure here of a judicial nature; and we 
found out finally on our side of this controversy that it was 
so much of a court at least that we could not put a leading 
question in it; and that is about the extreme exercise of the 
authority of a court in regard to the conduct of procedure 
that we lawyers habitually discover. 

The Constitution, as has been pointed out to you, makes 
this a court; it makes its proceeding a trial; it assigns a 
judgment; it accords a power of punishment to its procedure; 
and it provides that a jury in all judicial proceedings of a 
criminal character shall be necessary except in this Court 
and on this form of procedure. We may assume, then, that 
so far as words go, it is a court and nothing but a court. 

But it is a question, the honorable manager says, "of 
substance, and not of form." He concedes that if it be a 



IMPEACHMENT OF PRESIDENT JOHNSON 361 

court you must find upon the evidence something to make 
out the guilt of the offender to secure a judgment, and he 
argues against its being a court, not from any nice criticism 
of words or form, but, as he expresses it, for the substance. 
He has instructed you, by many references, and by an inter- 
esting and learned brief appended to his opening speech, in 
English precedents and authority to show that it is almost 
anything but a court; and perhaps during the hundreds of 
years in which the instrument of impeachment was used as 
a political engine, if you look only to the judgment and the 
reasons of the judgment, you would not think it was really 
a very judicial proceeding; but that through all the English 
history it was a proceeding in court, controlled by the 
rules of the court as a court, cannot be doubted. 

Indeed, as we all know, though the learned manager has 
not insisted upon it, the presence of the trial, under the pecul- 
iar procedure and jurisdiction of impeachment in the House 
of Lords, was but a part of the general jurisdiction of the 
House of Lords, as the great court of the kingdom, in all mat- 
ters civil and criminal, and one of the favorite titles of the 
lords of Parliament in those earlier days was "judges of 
Parliament;" and now the House of Lords in England is the 
supreme court of that country as distinctly as our great 
tribunal of that name is of this country. 

But one page of pretty sound authority, I take it, will 
put to flight all these dreamy, misty notions about a law and 
procedure of Parliament in this country and in this tribunal 
that is to supersede the Constitution and the laws of our 
country, when I show you what Lord Chancellor Thurlow 
thought of that subject as prevalent or expected to prevail 
in England. In Hastings's trial. Lord Loughborough hav- 
ing endeavored to demonstrate that the ordinary rules of 
proceeding in criminal cases did not apply to parliamentary 
impeachments, which could not be shackled by the forms 
observed in the courts below. Lord Thurlow said: 



362 SPEECHES OF ^VILLIAM MAXWELL EVARTS 

My lords, with respect to the laws and usage of Parliament, I 
utterly disclaim all knowledge of such laws. It has no existence. 
True it is, in times of despotism and popular fury, when to impeach 
an individual was to crush him by the strong hand of power, of 
tumult, or of violence, the laws and usage of Parliament were 
quoted in order to justify the most iniquitous or atrocious acts. 
But in these days of light and Constitutional Government, I trust 
that no man will be tried except by the laws of the land, a system 
admirably calculated to protect innocence and to punish crime. 

And after showing that in all the state trials under the 
Stuart reigns, and even down to that of Sachaverel, in every 
instance were to be found the strongest marks of tyranny, 
injustice, and oppression, Lord Thurlow continued: 

I trust your lordships will not depart from recognized, established 
law^s of the land. The Commons may impeach, your lordships 
are to try the cause; and the same rules of evidence, the same legal 
forms which obtain in the courts below, will, I am confident, be 
observed in this assembly. (Wraxall's Memoirs, p. 275.) 

But the learned manager did not tell us what this was if 
it was not a court. It is true he said it was a Senate, but 
that conveys no idea. It is not a Senate conducting legis- 
lative business; it is not a Senate acting upon executive 
business; it is not a Senate acting in caucus on political 
affairs; and the question remains, if it is not a court what is it.^ 
If this is not an altar of justice which we stand about, if we 
are not all ministers here of justice, to feed its sacred flame, 
what is the altar and what do we do here about it? It is an 
altar of sacrifice if it is not an altar of justice; and to what 
divinity is this altar erected? What, but the divinity of 
party hate and party rage, a divinity to which we may 
ascribe the Greek character given of envy, that it is at once 
the worst and the justest divinity, for it dwarfs and withers 
its worshippers. That, then, is the altar that you are to 
minister about, and that the savage demon you are to exalt 
here in displacing justice. 



IMPEACHMENT OP PRESIDENT JOHNSON 363 

Our learned managers, representing the House of Repre- 
sentatives, do not seem to have been at all at pains to con- 
ceal the party spirit and the party hate which displayed it- 
self in the haste, in the record, and in the maintenance of 
this impeachment. To show you what progress may make 
in the course of thirty years in the true ideas of the Consti- 
tution, and of the nature of impeachments, let me read to 
you what the managers of the impeachment of Judge Peck 
had to say in his behalf. And a pretty solid body of man- 
agers they were, too: Judge Ambrose Spencer, of New York; 
Mr. Henry R. Storrs, of New York; Mr. McDuffie, of South 
Carolina; Mr. Buchanan, of Pennsylvania, and Mr. Wickliffe, 
of Kentucky. Ambrose Spencer, as stern a politician as he 
was an upright judge, opened the case, and had a word to 
say on the subject of party spirit and party hate. Let me 
ask your attention to it: 

There is, however, one cheering and consolatory reflection. 
The House of Representatives, after a patient and full examination, 
came to the resolution to impeach Judge Peck by a very large 
majority; and the record will show an absence of all party feeling. 
Could I believe that that baleful influence had mingled itself with 
and predominated in that vote, no earthly consideration could have 
prevailed on me to appear here as one of the prosecutors of this 
impeachment. I have not language to express the abhorrence of 
my soul at the indulgence of such unhallowed feelings on such a 
solemn procedure. (Peck's Trial, p. 289.) 

Mr. Manager Butler talked to you many hours. Did he 
say anything wiser, or juster, or safer for the republic than 
that? Judge Spencer knew what it was to be a judge and 
to be a politician. For twenty years while he was on the 
bench of New York, the great judicial light in the common- 
law jurisdiction of that State, he was a head and leader of 
a political party, vehement and earnest and unflinching in 
support of its measures and in the conduct of its discipline; 
and yet no lawyer, no suitor, no critic ever ventured to say, 



364 SPEECHES OF WILLIAM MAXWELL EVARTS 

or to think, or to feel that Judge Spencer on the bench was 
a politician or carried any trait or trace of party feeling or 
interest there. Judge Spencer was a politician in the House 
of Representatives then; but Judge Spencer in the manage- 
ment of an impeachment could only say that if party feeling 
mingled in it he would have nothing to do with it, for his 
soul abhorred it in relation to so solemn a procedure. 
Yes, indeed, this divinity of party hate, when it possess a 
man, throws him now into the fire and now into the water, 
and he is unsuitable to be a judge until he can come again 
clothed and in his right mind to hear the evidence and admin- 
ister the law. 

But to come down to the words of our English history and 
experience, if this is not a court it is a scaffold, and an hon- 
orable manager yesterday told you so, that each one of you 
brandished now a headsman's axe to execute vengeance, 
you having tried the offender on the night of the 21st of 
February already. I would not introduce these bold 
words that should make this a scaffold, in the eyes of the 
people of this country, and you headsmen brandishing your 
axes, but the honorable manager has done so, and I have 
no difficulty in saying to you that if you are not a court, 
then you are that which he described and nothing else. If 
it be true that on the night of the 21st of February, upon 
a crime committed by the President at midday of that date 
and on an impeachment moving already forward to this 
chamber from the House of Representatives, you did hold a 
court and did condemn, then you are here standing about 
the scaffold of execution, and the part that you are to play 
is only that which was assigned you by the honorable man- 
ager, Mr. Stevens, and he warned you, held by fealty to your 
own judgments, not to blench at the sight of the blood. 

Now, to what end is this prodigious effort to expel from 
this tribunal all ideas of court and of justice.?^ What is it 
but a bold, reckless, rash, and foolish avowal that if it be a 



IMPEACHMENT OF PRESIDENT JOHNSON 365 

court, there is no cause here that, upon judicial reason, upon 
judicial scrutiny, upon judicial weighing and balancing of 
fact and of law, can result in a judgment which the impeach- 
ing party here, the managers and House of Representatives, 
demand and constitutionally may demand to be done by 
this Court? At last, to what end are the wisdom, and the 
courage, the civil prudence and the knowledge of history 
which our fathers brought to the framing of the Constitu- 
tion; of what service this wise, this honest frown in the 
Constitution upon ex post facto laws and bills of attainder? 
What is a bill of attainder; what is a bill of pains and pen- 
alties in the experience and in the learning of English juris- 
prudence and parliamentary history? It is a proceeding 
by the legislature, as a legislature, to enact crime, sentence, 
punishment, all in one. And certainly there is no alternative 
for you ; if you do not sit here under law to examine evidence, 
to be impartial, and to regard it as a question of personal 
guilt to be followed by personal punishment and personal 
consequences upon the alleged delinquent, then you are 
enacting a bill of pains and penalties upon the simple form 
that a majority of the House and two-thirds of the Senate 
must concur, and the Constitution and the wisdom of our 
ancestors all pass for nought. 

Our ancestors were brave and wise, but they were not 
indifferent to the dangers that attended this tribunal. 
They had no resource in the Constitution, where they could 
so well fix this necessary duty in a free Government to hold 
all its servants amenable to public justice, for the public 
service, except to devolve it upon this Senate; but let me show 
you within the brief compass of the debate, and the only 
material debate, in the Journal of the Convention that 
framed the Constitution, how the fears and the doubts 
predominated : 

Mr. Madison objected to a trial of the President by the Senate, 
especially as he was to be impeached by the other branch of the 



366 SPEECHES OF WILLIAM MAXWELL EVARTS 

legislature; and for any act which might be called a misdemeanor. 
The President, under these circumstances, was made improperly 
dependent. He would prefer the Supreme Court for the trial of 
impeachments; or, rather, a tribunal of which that should form a 
part. 

Mr. Gouverneur Morris thought no other tribunal than the 
Senate could be trusted. The Supreme Court were too few in 
numbers, and might be warped or corrupted. He was against a 
dependence of the Executive on the legislature, considering the 
legislative tyranny the great danger to be apprehended; but there 
could be no danger that the Senate would say untruly, on their 
oaths, that the President was guilty of crimes or facts, especially 
as in four years he can be turned out. 

That was Gouverneur Morris's wisdom as to the extent to 
which the Senate might be trusted under the sanctions and 
obligations of judicial oaths; but — 

Mr. Pinckney disapproved of making the Senate the court of 
impeachments, as rendering the President too dependent on the 
legislature. If he opposes a favorite law the two houses will 
combine against him, and, under the influence of heat and faction, 
throw him out of office. (5 Madison Papers, p. 528.) 

There is the sum and substance of the wisdom that our 
ancestors could bring to the subject of whether this was to 
be, or could be, a court. It is undoubtedly a very great 
burden and a very exhaustive test upon a political body to 
turn it into a court for the trial of an executive oflScial in 
ordinary circumstances. I shall hereafter point out to you 
the very peculiar, the very comprehensive and oppressive 
concurrence and combination of circumstances as bearing 
on this trial that require of you to brace yourselves upon 
all the virtue that belongs to you and to hold on to this oath 
for the Divine aid that may support you under this most 
extraordinary test of human conduct to which our Constitu- 
tion subjects you to-day. Now, what could the Constitution 
do for us? A few little words, and that is all — truth, justice, 



IMPEACHMENT OF PRESIDENT JOHNSON 367 

oath, duty. And what does the whole scope of our moral 
nature and the whole support we may hope from a higher 
aid extend to in any of the affairs of life but these? Truth, 
justice, oath, duty control the fate, life, liberty, character, 
and property of every citizen. Truth, justice, oath, duty 
are the ideas that the Constitution has forced upon your 
souls to-day. You receive them or you neglect them; which- 
ever way you turn you cannot be the same men afterward 
that you were before. Accepted, embraced, obeyed, you are 
nobler and stronger and better. Spurned, rejected, you 
are worse and baser and weaker and wickeder than before. 
And it is thus that by strong ideas a free Government must 
always be held to the path of duty and to the - maintenance 
of its own authority and to the prevalence of its own strength 
for its perpetual existence. 

They are little words, but they have great power. Truth 
is to the moral world what gravitation is to the material; 
it is the principle upon which it is established and coheres, 
and justice in the adaptation of truth to the affairs of men 
is in human life what the mechanism of the heavens is to 
the principle that sustains the forces of the globe. Duty 
is acceptance, obedience to these ideas, and this once gained 
secures the operation which was intended. When, then, 
you bend submissive to this oath, that faith among men 
which, as Burke says, "holds the moral elements of the world 
together," and that faith in God which binds that world to 
His throne, subdue you to the service of truth and justice; 
and the ever-living guardian of human rights and interests 
does not neglect what is essential to the preservation of the 
human race and its advancement. The purity of the family 
and the sanctity of justice have ever been cared for, and will 
ever be cared for. The furies of the Greek mythology had 
charge of the sanctions of an oath. The imaginations of 
the prophets of the world have sanctioned the solemnity of 
an oath, and peopled the place of punishment with oath- 



368 SPEECHES OF WILLIAM MAXWELL EVARTS 

breakers; and all the tortures and torments of history are 
applied to public servants who, in betrayal of sworn trust, 
have disobeyed those high, those necessitous obligations 
without which the whole fabric of society falls in pieces. 

I do not know why or how it is that we are so constituted, 
but so it is. The moral world has its laws as well as the 
material. Why a point of steel lifted above temple or 
home, should draw the thunderbolt and speed it safely to 
the ground I know not. How, in our moral constitution, 
an oath lifted to heaven can draw from the great swollen 
cloud of passion and of interest and of hate its charge I 
know not, but so it is. And be sure that loud and long as 
these honorable managers may talk, although they speak 
in the voice of "all the people of the United States," with 
their bold persuasions that you shall not obey a judicial 
oath, I can bring against it but a single sentence and a single 
voice; but that sentence is a commandment and that voice 
speaks with authority, "Thou shalt not take the name of 
the Lord thy God in vain, for the Lord will not hold him 
guiltless that taketh his name in vain." 

The moth may consume the ermine of that supreme jus- 
tice whose robes you wear; rust, Senators, may corrode the 
sceptre of your power; nay, Messrs. Managers, time even 
shall devour the people whose presence beating against the 
doors of this Senate-house, you so much love to vaunt and 
menace, but of the word that I have spoken "heaven and 
earth shall pass away and no jot or tittle of it fail." 

I have now reached, Mr. Chief Justice and Senators, a 
point where an adjournment would be agreeable, if such is 
the pleasure of the Senate. 

Second Day, April 29, 1868 

Mr. Chief Justice and Senators, if indeed we have arrived 
at a settled conclusion that this is a court, that it is gov- 
erned by the law, that it is to confine its attention to the 



IMPEACHMENT OF PRESIDENT JOHNSON 369 

facts applicable to the law, and regard the sole evidence of 
those facts to be embraced within the testimony of witnesses 
or documents produced in court, we have made great prog- 
ress in separating, at least, from your further consideration 
much that has been impressed upon your attention hereto- 
fore. 

If the idea of power and will is driven from this assembly, 
if the President is here no longer exposed to attacks upon the 
same principle on which men claim to hunt the lion and 
harpoon the whale, then, indeed, much that has been said 
by the honorable managers, and much that is urged upon 
your attention from so many quarters, falls harmless in 
your midst. It cannot be said of this Senate, fertur numeris 
leges solutis, that it is carried by numbers unrestrained by 
law. On the contrary, right here is might and power; and, 
as its servants and in its investigation and pursuit, your sole 
duty is exhausted. It follows from this that the President 
is to be tried upon the charges which are produced here, and 
not upon common fame, and least of all is he to be charged 
in your judgment, as he has been inveighed against hour after 
hour in argument, upon charges which the impeaching au- 
thority of the House of Representatives deliberately threw 
out as unworthy of impeachment and unsuitable for trial. 
We, at least, when we have an indictment brought into court 
and another indictment ignored and thrown out, are to be 
tried upon the former and not upon the latter. And if, on 
the 9th of December of the last year, the House of Represent- 
atives, with whom, by the Constitution, rests the sole 
impeaching power under this Government, by a vote of one 
hundred and seven to fifty-seven, threw out all the topics 
that fill up the declamatory addresses of the learned mana- 
gers, it is enough for me to say, that for reasons satisfactory 
to that authority, the House of Representatives, that bill 
was thrown out and those charges were withheld. 

So, too, if it be a trial on public prosecution, and with 

26 



370 SPEECHES OF WILLIAM MAXWELL EVARTS 

the ends of public justice alone in view, the ordinary rule 
of restraint of the conduct of the prosecuting authorities 
applies here; and I do not hesitate to say that this trial — 
to be, in our annals, the most conspicuous that our history 
will present; to be scrutinized by more professional eyes, 
by the attention of more scholars at home and abroad ; to be 
preserved in more libraries; to be judged of as a national 
trait, a national scale, a national criterion forever — ^presents 
an unexampled spectacle of a prosecution that overreaches 
judgment from the very beginning and inveighs and selects 
and impugns and oppresses as if already convicted, at every 
stage, the victim they pursue. The duty, the constraint 
upon a prosecuting authority under a government of law pur- 
suing only the public justice, is scarcely less strict and 
severe than that which rests upon the judge himself. To 
select evidence, having possession of better; to exclude 
evidence, knowing that it bears upon the inquiry; to restrict 
evidence, knowing that the field is thus closed against the 
true point of justice, is no part of a prosecuting authority's 
duty or power. Whatever may be permitted in the private 
contests of the forum, in the zeal of contending lawyers 
for contending clients, there is no such authority, no such 
duty, no such permission by our laws in a public prosecu- 
tion. Much less, when the proofs have been thus kept 
narrow, when the charges are thus precise and technical, is it 
permissible for a prosecuting authority to enlarge the area 
of declamation and invective. Much less is it suitable for a 
public prosecution to inspire in the minds of the Court 
prejudice and extravagance of jurisdiction beyond the 
points properly submitted. 

It has usually been supposed that, upon actual trials 
involving serious consequences, forensic discussion was the 
true method of dealing with the subject, and we lawyers, 
appearing for the President, being, as Mr. Manager Boutwell 
has been polite enough to say, "attorneys whose practice of 



IMPEACHMENT OF PRESIDENT JOHNSON 371 

the law has sharpened but not enlarged their intellects," 
have confined ourselves to that method of forensic discussion. 
But we have learned here that there is another method of 
forensic controversy which may be called the method of 
concussion. I understand the method of concussion to be 
to make a violent, noisy, and explosive demonstration in 
the vicinity of the object of attack, whereas the method of 
discussion is to penetrate the position, and if successful to 
capture it. The Chinese method of warfare is the method of 
concussion, and consists of a great braying of trumpets, 
sounding of gongs, shouts, and shrieks in the neighborhood 
of the opposing force, which rolled away and the air clear 
and calm again, the effect is to be watched for. But it has 
been reserved for us in our modern warfare, as illustrated 
during the rebellion, to present a more singular and notable 
instance of the method of warfare by concussion than has 
ever been known before. A fort impregnable by the method 
of discussion, that is, penetrating and capturing it, has been 
on the largest scale attempted by the method of concussion, 
and some two hundred and fifty tons of gunpowder in a hulk 
moored near the stone walls of the fort has been made the 
means and the occasion of this vast experiment. Unsatisfied 
with that trial and its result, the honorable manager who 
opened this case [Mr. Butler] seems to have repeated the 
experiment in the vicinity of the Senate. The air was filled 
with epithets, the dome shook with invective. Wretchedness 
and misery and suffering and blood, not included within the 
record, were made the means of this explosive mixture. And 
here we are, surviving the concussion, and after all reduced 
to the humble and homely method of discussion, which be- 
longs to "attorneys whose intellects have been sharpened 
but not enlarged by the practice of law." 

In approaching, then, the consideration of what consti- 
tutes impeachable offences, within the true method and duty 
of that solemn and unusual procedure and within the Con- 



372 SPEECHES OF WILLL\M MAXWELL EVARTS 

stitution, we see why it was that the effort was to make 
this an inquisition of office instead of a trial of personal and 
constitutional guilt; for if it is an inquest of office, " crowner's 
quest law" will do throughout for us, instead of the more 
solemn precedents and the more dignified authorities and 
duties which belong to solemn trial. Mr. Manager Butler 
has given us a very thorough and well-considered suggestion 
of what constitutes an impeachable offence. Let me ask 
your attention to it; and every one of these words is under- 
scored by the honorable manager : 

We define, therefore, an impeachable high crime or misdemeanor 
to be one in its nature or consequences subversive of some funda- 
mental or essential principle of government, or highly prejudicial 
to the public interest, and this may consist of a violation of the 
Constitution, of law, of an official oath, or of duty, by an act com- 
mitted or omitted, or, without violating a positive law, by the abuse 
of discretionary powers from improper motives or for any im- 
proper purpose. 

See what large elements are included in this, the manager's 
definition! It must be "subversive of some fundamental 
or essential principle of government," "highly prejudicial 
to the public interest," and must proceed from "improper 
motives" and for an "improper purpose." That was in- 
tended, in the generality of its terms, to avoid the necessity 
of actual and positive crime; but it has given us in one re- 
gard everything that is needed to lift the peccability of 
these technical offences of mere statutory infraction out of 
the region of impeachable offence. It is not that you may 
accuse of a definite and formal crime, and then have outside 
of your indictment, not covered by charge or admitted for 
proof or countervailing proof, large accusations that touch 
these general subjects, but that the act under inquiry, 
charged and proved or refuted by proof, must be of itself 
such as, within its terms and regular and natural consequence, 
thus touches vital interests or fundamental principles. 



IMPEACHMENT OF PRESIDENT JOHNSON 373 

The fallacy of these general qualifying terms is in making 
them the substance of the crime instead of the conditions of 
impeachability. You must have the crime definite under 
law and Constitution, and even then it is not impeachable 
unless you affect it with some of the public and general and 
important qualities that are indicated in this definition of 
the learned and honorable manager. 

We may look, perhaps, at the statement made by the man- 
agers of the House of Representatives on this subject of what 
constitutes an impeachable offence in the trial of Judge 
Peck, Mr. Buchanan, of Pennsylvania, chairman of the man- 
agers, being the speaker: 

What is an impeachable offence? This is a preliminary ques- 
tion which demands attention. It must be decided before the 
Court can rightly understand what it is they have to try. The 
Constitution of the United States declares the tenure of the judi- 
cial office to be "during good behavior." Official misbehavior, 
therefore, in a judge, is a forfeiture of his office; but when we say 
this we have advanced only a small distance. Another question 
meets us. What is misbehavior in office? In answer to this ques- 
tion, and without pretending to furnish a definition, I freely ad- 
mit we are bound to prove that the respondent has violated the 
Constitution, or some known law of the land. This, I think, was 
the principle fairly to be deduced from all the arguments on the 
trial of Judge Chase, and from the votes of the Senate in the ar- 
ticles of impeachment against him. (Peck's Trial, p. 427.) 

That crime, in the sense of substantial guiltiness, personal 
delinquency, moral opprobrious blame, is included even 
under the largest and most liberal accusation that was 
espoused and defended by the managers in Hastings's im- 
peachment, is to be gathered from one of the many splendid 
passages of Burke's invective in that cause: 

As to the crime which we charge, we first considered well what 
it was in its nature, and under all the circumstances which attended 
it. We weighed it with all its extenuations and with all its aggra- 



g7'4 SPEECHES OF WILLIAM MAXWELL EVARTS 

vations. On that review we are warranted to assert that the 
crimes with which we charge the prisoner at the bar are substantial 
crimes; that they are no errors or mistakes, such as wise and good 
men might possibly fall into; which may even produce very per- 
nicious effects without being, in fact, great offences. The Com- 
mons are too liberal not to allow for the difhculties of a great and 
arduous public situation. They know too well the domineering 
necessities which frequently occur in all great affairs. They know 
the exigency of a pressing occasion which in its precipitate career 
bears everything down before it, which does not give time to the 
mind to recollect its faculties, to re-enforce its reason, and to 
have recourse to fixed principles, but by compelling an instant 
and tumultuous decision too often obliges men to decide in a man- 
ner that calm judgment would certainly have rejected. We 
know, as we are to be served by men, that the persons who serve 
us must be tried as men, and with a very large allowance indeed 
to human infirmity and human error. This, my lords, we knew, 
and we weighed before we came before you. But the crimes which 
we charge in these articles are not lapses, defects, errors of common 
human frailty, which, as we know and feel, we can allow for. We 
charge this offender with no crimes that have not arisen from pas- 
sions which it is criminal to harbor; with no offences that have not 
their root in avarice, rapacity, pride, insolence, ferocity, treachery, 
cruelty, malignity of temper; in short, in nothing that does not argue 
a total extinction of all moral principle, that does not manifest an 
inveterate blackness, dyed ingrain with malice, vitiated, corrupted, 
gangrened to the very core. If we do not plant his crimes in those 
vices which the heart of man is made to abhor, and the spirit of 
all laws, human and divine, to interdict, we desire no longer to 
be heard on this occasion. Let everything that can be pleaded 
on the ground of surprise or error upon those grounds be pleaded 
with success; we give up the whole of those predicaments. We 
urge no crimes that are not crimes of forethought. We charge 
him with nothing that he did not commit upon deliberation; that 
he did not commit against advice, supplication, and remonstrance; 
that he did not commit against the direct command of lawful au- 
thority; that he did not commit after reproof and reprimand, the 
reproof and reprimand of those who are authorized by the laws to 



IMPEACHMENT OF PRESIDENT JOHNSON 375 

reprove and reprimand him. The crimes of Mr. Hastings are 
crimes not only in themselves, but aggravated by being crimes of 
contumacy. They were crimes not against forms, but against those 
eternal laws of justice which are our rule and our birthright. His 
offences are not in formal, technical language, but in reality, 
in substance and effect, high crimes and high misdemeanors. 
(Burke's Works, vol. 7, pp. 13, 14.) 

And so the articles charged them, not leaving it to the 
declamation or invention of the orators of that great occa- 
sion. I need not insist, in repetition of the very definite, 
concise, and I must think effective argument of the learned 
counsel who opened this case for the respondent [Mr. Cur- 
tis], upon the strict constitutional necessity, under the clause 
prohibiting ex post facto laws, and under the clause pro- 
hibiting bills of attainder, and under the clauses that fix 
the trial as for crime in the Constitution under the designa- 
tion in the articles of enumeration of "treason" and "brib- 
ery" alone, the highest great crimes against the State that 
can be imagined, that you should have here what is crime 
against the Constitution and crime against the law, and then 
that it should have those public proportions that are indi- 
cated in the definition of the opening manager, and those 
traits of freedom from error and mistake and doubt and 
difficulty which belong, in the language of Mr. Burke, to an 
arduous public station. And then you will perceive that 
under these necessary conditions either this judgment must 
be arrived at, that there is no impeachable offence here 
which covers and carries with it these conditions, or else 
that the evidence offered on the part of the respondent 
that was to negative, that was to countervail, that was to 
reduce, that was to refute all these qualifications should 
have been admitted; and when a court like this has excluded 
the whole range of evidence relating to the public character 
of the accused and the difficulties of an arduous public 
situation, it must have determined that the crimes charged 



376 SPEECHES OF WILLIAM MAXWELL EVARTS 

do not partake of that quality, or else it would have required 
them to have been affirmatively supported by proofs giving 
those qualifications, and permitted them to be reduced by 
countervailing evidence. And when a court sits only for a 
special trial, when its proceedings are incapable of review, 
when neither its law nor its fact can be dissected, even by 
reconsideration within its own tribunal, the necessary con- 
sequence is that, when you come to make up your judgment, 
either you must take as for granted all that we offered to 
prove, all that can fairly be embraced as to come in, in form, 
in substance, in color, and in fact, by the actual production 
of such proof, so that your judgment may thus proceed; or 
else it is your duty before you reach the irrevocable step 
of judgment and sentence to resume the trial and call in 
the rejected evidence. I submit it to you that a court 
without review, without new trial, without exception, and 
without possible correction of errors, must deal with evi- 
dence in this spirit and upon this rule. And unless you arrive, 
as I suppose you must, at the conclusion that the dimensions 
of this trial relate to the formal, technical infraction of the 
statute law that has been adduced in evidence here, it will 
be your duty to reopen your doors, call the respondent 
again before you, and go into the field of inquiry that has 
been touched in declamation, but has not been permitted in 
proof. 

But Mr. Chief Justice and Senators, there is no better 
mode of determining whether a crime accorded to a particu- 
lar jurisdiction and embraced within a particular prohibition 
is to be a high crime and misdemeanor, and what a high 
crime and misdemeanor means, and what the lowest level 
and the narrowest limit of its magnitude and of its height 
must be, than to look at its punishment. Epithets, newly- 
invented epithets, used in laws do not alter the substance of 
things. Your legislation of the 2d of March, 1867, introduc- 
ing into a statute law the qualifying word "high," applied 



I^IPEACHMENT OF PRESIDENT JOHNSON 377 

to a misdemeanor, is its first appearance in the statute law 
of this country or of the parent country from whom we draw 
our jurisprudence. It means nothing to a lawyer. There 
is in the conspiracy act of 1861 the same introduction of the 
word "high" as applied to the body of the offence there 
called "a crime." A "high crime" it is called in this little 
conspiracy act of 1861, and there in the one instance and 
here in the other an epithet is thrown into an act of Congress. 
But, Mr. Chief Justice and Senators, when the legislative 
authority in its scale of punishment makes it, as the common 
sense of mankind considers, great in its penalty, terrible in 
its consequences, that is a legislative statement of what the 
quality of the crime is. When you put into a statute that 
the offence shall be punished by death you need no epithet 
to show that that is a great, a heinous crime; and when the 
framers of this Constitution put into it, as the necessary 
result of the trial of the President of the United States and 
his conviction, that his punishment should be deprivation 
of office, and that the public should suffer the necessity of a 
new election, that showed you what they meant by "high 
crime or misdemeanor." 

I know that soft words have been used by every manager 
here on the subject of the mercy of our Constitution and the 
smallness of the punishment; that it does not touch life, 
limb, or property. Is that the sum of penalties .'' Is that 
the measure of oppression of punishment.'* Why, you might 
as well say that when the mother feels for the first time her 
new-born infant's breath, and it is snatched from her and 
destroyed before her eyes, she has not been deprived of life, 
liberty, or property. In a republic where public spirit is the 
life, and where public virtue is the glory of the state, and in 
the presence of public men possessing great public talents, 
high public passions, and ambitions, made up, as this body 
is, of men sprung, many of them, from the ordinary condi- 
tion of American life, and by the force of their native talents. 



378 SPEECHES OF WILLIAM MAXWELL EVARTS 

and by the high quahties of endurance and devotion to the 
public service, who have Hfted themselves into this eminent 
position, if not the envy, the admiration of all their country- 
men, it is gravely proposed to you, some of whom from this 
elevated position do not disdain to look upon the presi- 
dency of the United States as still a higher, a nobler, a greater 
office, if not of pride, yet of duty, that you shall feel and 
say that it is a little thing to take a President from his 
public station and strike him to the ground, branded with 
high crime and misdemeanor, to be a byword and reproach 
through the long gauntlet of history forever and forever. 
In the great hall of Venice, where long rows of doges cover 
with their portraits the walls, the one erased, the one de- 
featured canvas attracts to it every eye; and one who has 
shown his devotion to the public service from the earliest begin- 
ning, and you who have attended in equal steps that same as- 
cent upward, and now, in the very height and flight of your 
ambition, feel your pinions scorched and the firm sockets of 
your flight melted under this horrid blaze of impeachment, 
are to be told, as you sink forever, not into a pool of oblivion, 
but of infamy, and as you carry with you to your posterity 
to the latest generation this infamy, that it is a trifling 
matter, and does not touch life, liberty, or property! If 
these are the estimates of public character, of public fame, 
and of public disgrace by which you, the leaders of this coun- 
try, the most honored men in it, are to record your estimate 
of the public spirit and of the public virtue of the American 
state, you have indeed written for the youth of this country 
the solemn lesson that it is dust and ashes. 

Now, what escape is there from this conclusion, in every 
true estimate of the character of this procedure and of the 
result that you seek to fasten upon this President if justice 
requires it, to say that it is trifling and trivial and that formal 
and technical crime may lead to it? Do the people of this 
country expect to be called to a presidential election in the 



IMPEACHMENT OF PRESIDENT JOHNSON 379 

middle of a term, altering the whole calendar, it may be, of 
the Government, because there has been an infraction of a 
penal statute carrying no consequences beyond? It is 
accidental, to be sure, that the enforced and irregular elec- 
tion that may follow upon your sentence at this time con- 
curs with the usual period of the ciuadrennial election; but 
it is merely accidental. And yet these, Senators, are gravely 
proposed to you as trivial results that are to follow from a 
judgment on an accusation of the character and of the quality 
that I have stated in fact, as compared with the quality 
and character that it should bear in truth. 

In reference to this criminality of the infraction of the 
statute, which in the general remarks that I am making 
you will see furnishes the principal basis of charge that I am 
regarding, we may see from the statute itself what the 
measure of criminality there given is, what the measure 
under indictment would be or might be, and then you will 
see that that infraction, if it occurred, and if it were against 
the law and punishable by the law under the ordinary meth- 
ods and procedures of our common courts of justice, furnishes 
not only no vindication of, but no support to, the notion 
that upon it can be ingrafted the accusation of impeachment 
the accusation of criminality that is impeachable, any more 
than any other topic of comparatively limited and trivial 
interest and concern. The provision is not that there must 
be a necessary penalty of gravity, but that under the scale 
of imprisonment and fine the only limit is that it shall not 
exceed $10,000 of pecuniary liability and five years of im- 
prisonment. Six cents fine, one day's imprisonment, ac- 
cording to the nature of the offence, within the discretion 
of the Court, may satisfy the public justice under indictment 
in regard to this offence which is claimed as the footing and 
front of the President's fault. 

Nor was this open, unrestricted mercy of the law unat- 
tended to in debate. The honorable senator from Massa- 



380 SPEECHES OF WILLIAM MAX^TLL EVARTS 

chusetts [Mr. Suniner] in the course of the discussion of 
this section of the bill, having suggested that it would be 
well, at least, to have a moderate minimum of punishment 
that would secure something like substance necessarily in the 
penal infliction, and having suggested $1,000 or $500 as 
the lower limit, basing upon this wise intimation that some 
time or other there might be a trial under this section before 
a court that had a political bias and the judge might let the 
man off without any substantial punishment, he was met 
by the honorable senator from Vermont [Mr. Edmunds] 
and the honorable senator from Oregon [Mr. Williams] 
who seemed to have the conduct of the bill, at least in re- 
spect to these particular provisions, in the way to which I 
will attract your attention. Mr. Sumner said: 

Shall we not in this ease, where political opinion may intrude 
on the bench, make a provision that shall at least secure a certain 
degree of punishment? 

Mr. Edmunds defended the unlimited discretion of pun- 
ishment. 

Mr. Williams said: 

I concur in the views expressed by the senator from Vermont, 
for the reason, in the first place, that this is a new offence created 
by statute, and it does not define a crime involving moral turpi- 
tude, but rather a political offence; and there is some ground to 
suppose that mistakes may be made under this law by persons in 
office; and I think that in such case there should be a large dis- 
cretion left to the Court. 

So much for indictment; so much for the wise reasons of 
our legislators; and then, that being the measure and the 
reason, there is clamped upon this a necessary, an inevitable, 
an inexorable result that is to bring these vast consequences 
to the state and to the respondent. But even then you do 
not know or understand the full measure of discretion, 
unless you attend to the fact that such formal, technical 



IMPEACH^IENT OF PRESIDENT JOHNSON 381 

crimes when made the subject of conviction and of sentence 
in obedience to the law are, under a principle of our Consti- 
tution and of every other just, I will not say merciful, 
government in the world, made subjects of pardon; but 
under this process of impeachment, with but one punish- 
ment, and that the highest in the public fame and character 
of men that is known or that can be conceived, we have 
this further, this terrible additional quality, that the punish- 
ment is immitigable, immutable, irreversible, unpardonable, 
and no power whatever can lighten or relieve the load with 
which an impeached and convicted public servant goes 
forth from your chambers in a just exercise of this power of 
impeachment with a punishment heavier than he can bear. 

And now, what answer is there to this but an answer that 
will take a load of punishment and of infamy from him and 
place it somewhere else? True it is that if he be unjustly 
convicted, if he be convicted for technical and formal faults, 
then the judgment of the great nation, of intelligent and in- 
dependent men, stamps upon his judges the consequences 
that they have failed to inflict upon the victim of their power. 
Then it is that the maxim si innocens damnatur, judex bis 
damnatur, finds its realization in the terrors of public opinion 
and the recorded truths of history. 

I have introduced these considerations simply to show 
you that these notions, that, if you can prove that a man has 
stumbled over the statute, it is essential that he should bear 
these penalties and these consequences, find no support in 
reason, none in law, none in the Constitution, none in the 
good sense of this high tribunal, none in the habits and views 
of the great people whom we represent. Indeed, we should 
come under the condemnation of the speaker in Terrence 
if we were to seek upon this narrow, necessary view, as it is 
urged, of law, such consequences as I have stated: Suvimum 
jus soepe summa est malitia, an extremity of the law is often 
the extremity of wickedness. 



382 SPEECHES OF WILLIAM MAXWELL EVARTS 

And now I am prepared to consider the general traits and 
qualities of this offence charged; and I shall endeavor to 
pursue in the course of my argument a consideration, per- 
haps not always formal nor always exactly defined, of three 
propositions : 

1. That the alleged infractions of these penal statutes are 
not in themselves, nor in any quality or color that has been 
fastened upon them by the evidence in this cause, impeach 
able offences. 

2. Having an application to the same conclusion, that 
whatever else there is attendant, appurtenant, or in the 
neighborhood of the subjects thus presented to your consid- 
eration, they are wholly political, and not the subject of 
jurisdiction in this court or in any court, but only in the 
great forum of the popular judgment, to be debated there at 
the^hustings and in the newspapers, by the orators and the 
writers, to whom we are always so much indebted for cor- 
rect and accurate views on subjects presented for such 
determination. If I shall have accomplished this I shall 
have accomplished everything. I shall have drawn atten- 
tion to the true dimensions in a constitutional view of the 
crime alleged even if it has been committed, and shall have 
shown by a reflex application of the argument that it is 
mere error and confusion, perhaps pardonable in an impeach- 
ing authority, but unpardonable in a court of judgment, 
to confound things political with things criminal. 

And then, third, I shall ask your attention to the precise 
traits and facts as disclosed in the evidence charged in the 
articles, and bring you, I think, to a safe, an indisputable, 
firm, and thorough conclusion that even the alleged infrac- 
tions of penal law have none of them, in fact, taken place. 

Now, let us look at this criminality in the point upon 
which, in the largest view of any evidence in support of it 
given on the part of the managers, it must turn. We must 
separate, at least for the purpose of argument, the inuendoes, 



IMPEACHMENT OF PRESIDENT JOHNSON 383 

the imputations, the aggravations that find their place only 
in the oratory of the managers, or only in your own minds 
as conversant with the political situation and enlisted 
zealously in the rightful controversies which belong to it as a 
political situation, and we are then to treat the subject in 
this method: that up to twelve o'clock on February the 
21st, 1868, the President was innocent and unimpeachable, 
and at one o'clock on the same day he was guilty and im- 
peachable of the string of offences that fill up all the articles, 
except that devoted to the speeches, the tenth; for whatever 
he did was done then at that point of time, leaving out the 
Emory article, which relates to a conversation on the morn- 
ing of the 22d, and which I also should have excepted from 
these observations. What he did was all in writing. What 
he did was all public and official. What he did was commu- 
nicated to all the authorities of the Government having rela- 
tion to the subject. Therefore you have at once proposed 
for your consideration a fault, not of personal dehnquency, 
not of immorality or turpitude, not one that disparages in 
the judgment of mankind, not one that degrades or affects 
the position of the malefactor; it is, as Mr. Senator Williams 
truly said, a "new offence," also, an offence "not involving 
turpitude, and rather of a political character." 

Now, too, upon these proofs the offence carries no conse- 
quences beyond what its action indicates, to wit: a change 
in the head of a department. It is not a change of the depart- 
ment. It is not an attempt to wrest a department or apjjly 
an oflfice against the law, contrary to the regulations of the 
Government, and turn its power against the safety or peace 
of the state; not in the least. Whatever imaginations may 
suggest, whatever invective and opprobrium may intimate, 
the fact is that it had no other object, had no other plan, 
would have had no other consequences — I mean within the 
limits of this indictment and of this proof — than to substi- 
tute for Mr. Stanton some other citizen of the United States 



384 SPEECHES OF WILLIAM MAXWELL EVARTS 

that, by and with the advice and consent of the Senate, 
should be approved for that high place, or to fill it, until 
that advice and consent should be given, by some legal ad 
interim holder of the oflQce, not filling it, but discharging its 
duties. 

If, then, the removal had been effected, if the effort to 
assert a constitutional authority by the President had been 
effectual, no pretence is made, or can be made, that anything 
would have been accomplished that could be considered as a 
turning of the Government or any branch of its service out 
of the authority of law. Neither did it in purpose or con- 
sequences involve any change in the policy of the Executive 
of the United States in the War Department or in its man- 
agement. Whatever there might have been of favor or sup- 
port in public opinion, in political opinion, in the wishes and 
feelings of the Congresses of the United States in favor of 
Mr. Stanton for that post, and however well deserved all 
that might be. Senators cannot refuse to understand that 
that does not furnish a reason why the offence committed 
by a change of the head of a department should be exag- 
gerated into a crime against the safety of the State. 

But I think we may go further than that, and say that 
however great may have been the credit with the houses of 
Congress and with the people, or with the men of his own 
party, which the Secretary of War, Mr. Stanton, enjoyed, it 
cannot be denied that there was a general and substantial 
concurrence of feeling in this body, among all the public 
men in the service of the Government, and among the citizens 
in general, that the situation disclosed to public view and 
public criticism, of an antagonism between the head of a 
department and the President of the United States, was 
not suitable to the public service, and was not to be encour- 
aged as a situation in the conduct of the Executive Govern- 
ment, and that there was a general opinion among thought- 
ful and considerate people that, however much the politics 



IMPEACHMENT OF PRESIDENT JOHNSON 385 

of the Secretary of War might be regarded as better than 
the pohtics of the President, if we would uphold the frame 
of Government and recognize the official rights that belong 
to the two positions, it was a fair and just thing for the 
President to expect that the retirement should take place 
on the part of the Secretary, rather than that he, the Presi- 
dent, should be driven to a forced resignation himself, or 
to the necessity of being maimed and crippled in the conduct 
of the public service. 

It follows necessarily, then, that the whole criminality, in 
act, in purpose, and in consequence, that in this general 
survey we can attach to the imputed offence, is a formal con- 
travention of a statute. I will not say how criminal that 
may be. I will not say whether absolute, undeviating, 
inflexible, perfect obedience to every law of the land may 
not be exacted under the penalty of death from everj-body 
holding public station. That is matter of judgment for 
legislators; but nevertheless the morality, the policy, the 
quality of the transaction cannot be otherwise affected than 
so far as the actual punishments of the statute are made 
applicable. When you consider that this new law, thus 
passed, really "reverses the whole action of this govern- 
ment," in the language of senators and representatives who 
spoke in its behalf during its passage; that, in the language 
of the same debaters, it "revolutionizes the practice of the 
government;" and when you consider that the only person 
in the United States that this law, in respect to the removal 
from office, was intended to, or by its terms could, affect, was 
the President of the United States; that nobody else was 
subject to the law; that it was made a rule, a control, a 
restraint, a mandate, a direction to nobody else in the 
United States except the President, just as distinctly as if it 
had said in its terms, "If the President of the United States 
shall remove from office he shall be punished by fine and 
imprisonment;" and when you know that, by at least de- 

27 



386 SPEECHES OF WILLIAM MAXWELL EVARTS 

bated and disputed contests, it was claimed that the Presi- 
dent of the United States had the right to remove, and that 
an inhibition upon that right was a direct assertion of 
congressional authority aimed at the President in his public 
trust, duty, and authority of carrying on the Executive 
Government, you can then at once see that by a necessary 
exclusion and conclusion, however much the act may have 
been against the law in fact, as on subsequent judgment may 
be held by this or any other court, yet it was an act of that 
nature, forbidden under those circumstances, and to be at- 
tempted under those obligations of duty, if attempted at 
all, which gave it this quality, and you see at once that no 
rhetoric, that no argument, that no politics whatever can 
fix upon the offence, completed or attempted, any other 
quality than this : a violation of a law, if it shall be so held, 
in support of and in obedience to the higher obligation of the 
Constitution. Whenever anybody puts himself in that posi- 
tion, nobody can make a crime of it in the moral judgment, 
in the judicial determination. In sentence and measure 
of punishment, at least, if not in formal decision and judg- 
ment, no man can make a crime of it. 

We are treated to the most extraordinary view on the 
subject of violating what is called an unconstitutional law. 
Why, nobody ever violates an unconstitutional law, because 
there never is any such obstacle to a man's action, freedom, 
duty, right, as an unconstitutional law. The question is 
whether he violates law, not whether he violates a written 
paper published in a statute-book, but whether he violates 
law; and the first lessons under a written Constitution are 
and must be that a law unconstitutional is no law at all. 
The learned manager, Mr. Boutwell, speaks of a law being, 
possibly, he says, capable of being annulled by the judgment 
of the Supreme Court. Why, the Supreme Court never 
annuls a law. There is not any difference in the binding 
force of the law after the Supreme Court has annulled it, as 



I^IPEACmiENT OF PRESIDENT JOHNSON 387 

he calls it, from what there was before. The Supreme 
Court has no political function; it has no authoritj^ of will 
or power to annul a law. It has the faculty of judgment, 
to discern what the law is, and what it always has been, 
and so to declare it. 

Apply it to an indictment under this very statute, and 
supposing the law is unconstitutional, for the purpose of 
argument, what is the result.? Is the man to be punished 
because he has violated the law, and the Supreme Court has 
not as yet declared it unconstitutional.? No; he comes into 
court and says, "I have violated no law." The statute is 
read; the Constitution is read; and the judge says, "You 
have violated no law." That is the end of the matter; and he 
does not want to appeal to the discretion of the Court in the 
measure of punishment, or to the mercy of the Executive in 
the matter of pardon. He has done what was right, and 
he needs to make no apology to Congress or anybody else, 
and Congress, in so far as it has not protected the public 
servant, rather owes an apology to him. I shall consider 
this matter more fully hereafter; and now look at it only in 
the view of fixing such reduced, and necessarily reduced, 
estimate of the criminality imputed, as makes it impossible 
that this should be an impeachable offence. 

Much has been said about the duty of the people to obey 
and of officers to execute unconstitutional laws. I claim 
for the President no greater right, in respect to a law that 
operates upon him in his public duty, and upon him exclu- 
sively, to raise a question under the Constitution, to deter- 
mine what his right and what his duty is, than I claim for 
every citizen in his private capacity when a law infringes 
upon his constitutional and civil and personal rights; for to 
say that Congress has no right to pass unconstitutional 
laws and yet that everybody is to obey them, just as if they 
were constitutional, and to be punished for breaking them, 
just as if they were constitutional, and to be prevented from 



388 SPEECHES OF WILLIAM MAXWELL EVARTS 

raising the question whether they are constitutional, by 
penal inflictions that are to fall upon them, whether they 
succeed in proving them unconstitutional or not, is, of 
course, trampling the Constitution, and its defence of those 
who obey it, in the dust. Who will obey the Constitution, as 
against an act of Congress that invades it, if the act of Con- 
gress with the sword of its justice can cut off his head and 
the Constitution has no power to save him, and nothing 
but debate hereafter as to whether he was properly punished 
or not? The gentlemen neglect the first, the necessary 
conditions of all constitutional government, when they 
press upon us arguments of this nature. 

But again, the form alleged of infraction of this law, 
whether it was constitutional or unconstitutional, is not 
such as to bring any person within any imputation, I will 
not say of formal infraction of the law, but of any violent, 
wilful use and extent of resistance to, or contempt of, the law. 
Nothing was done whatever but to issue a paper and have 
it delivered, which puts the posture of the thing in this 
condition and nothing else: the Constitution, we will sup- 
pose, says that the President has a right to remove the Sec- 
retary of War; the act of Congress says the President shall 
not remove the Secretary of War; the President says, "I will 
issue an official order which will raise the same question be- 
tween my conduct and the statute that the statute raises be- 
tween itself and the Constitution." As there is not, and can- 
not be, and never should be, a reference of a law abstractly to 
the revision and determination of the Supreme Court, or of any 
other court, which would be making it a council of revision and 
of superior and paramount political and legislative author- 
ity, so when the Constitution and a law are, or are supposed 
to be, at variance and inconsistent, everybody upon whose 
right this inconsistency intrudes has a right, under the usual 
ethical conditions of conduct of good citizenship, to put him- 
self in a position to act under the Constitution and not under 



IMPEACHMENT OF PRESIDENT JOHNSON 389 

the law. And thus the President of the United States, as 
it is all on paper thus far — the Constitution is on paper, 
the law is on paper — issues an order on paper, which is but an 
assertion of the Constitution and a denial of the law, and 
that paper has legal validity if the Constitution sustains it, 
and is legally invalid and ineffectual, a mere imbelle telum, if 
the law prohibits it and the law is conformed to the Constitu- 
tion. Therefore it appears that nothing was done but the 
mere course and process of the exercise of right claimed 
under the Constitution without force, without violence, 
and making nothing but the attitude, the assertion which, 
if questioned, might raise the point for judicial determina- 
tion. 

Now, Senators, you are not, you cannot be, unfamiliar 
with the principle of our criminal law, the good sense, the 
common justice of which, although it sometimes is pushed to 
extremes, approves itself to every honest mind, that criminal 
punishments, under any form of statute definitions of crime, 
shall never be made to operate upon acts, even of force and 
violence, that are, or honestly may be believed to be, done 
under a claim of right. It is for this purpose that the 
animus, the intent, the animus furandi in case of larceny, 
the malice prepense in a case of murder, the intent neces- 
sary in every crime, is made the very substance of the crime, 
and nothing is felt to be more oppressive, and nothing has 
fewer precedents in the history of our legislation or of our 
judicial decisions, than any attempt to coerce the assertion 
of peaceable and civil claims of right by penal enactments. 
It is for that reason that our communities and our law-givers 
have always frowned upon any attempt to coerce the right 
of appeal under any restrictions or any penalties of costs of 
a character oppressive. Civil rights are rights valuable 
and practical, just according as people can avail themselves 
of them, they keeping the peace; and the moment you put 
the coercion of punishment upon the assertion of a right, a 



390 SPEECHES OF ^^TLLIAM ]MAX\^'ELL EVARTS 

claimed right, in a manner not violating the peace and not 
touching the public safety, you infringe one of the necessary 
liberties of every citizen. 

Although I confess that I feel great reluctance, and it is 
contrary to my own taste and judgment very much to mingle 
what is but a low level of illustration and argument with so 
grave and general a subject as determining the dimensions 
and qualities of an impeachable offence, yet, on the other 
hand, day after day it is pressed upon you that a formal 
violation of a statute, although made under the claim of a 
constitutional right and duty, honestly felt and possessed 
by the President, is nevertheless a ground of impeachment, 
not to be impeded or prevented by any of these considera- 
tions; and hence I am induced to ask your attention to what 
is but an illustration of the general principle, that penal 
laws shall not be enforced in regard to an intent which is 
governed by a claim of right. And this singular case oc- 
curred: a poacher who had set his wires within the domain 
of a lord of the manor had caught a pheasant in his wires; 
the gamekeeper took possession of the wires and of the dead 
pheasant, and then the poacher approaches him by threats 
of violence, which would amount to robbery, not larceny, 
takes from him the wires and the dead pheasant, and the 
poacher situated in that way on another's dominions, and 
thus putting himself in a condition w^here the humanity of 
the law can hardly reach and protect him, is brought into 
question and tried for robbery; and Vaughan, Baron, says: 

If the prisoner demanded the wires under the honest impression 
that he had a right to them, though he might be liable to a trespass 
in setting them it would not be a robbery. The gamekeeper had 
a right to take them, and when so taken they never could have been 
recovered from him by the prisoner; yet, still, if the prisoner acted 
under the honest belief that the property in them continued in 
himself, I think it is not a robbery. If, however, he used it merely 
as a pretense, it would be robbery. The question for the jury is, 



IMPEACHMENT OF PRESIDENT JOHNSON 391 

whether the prisoner did honestly beUeve he had a property in 
the snares and pheasant or not. (1 Russell on Crimes, 872.) 

Thus does the criminal law of a free people distinguish 
between technical and actual fault; and what mean the guar- 
antees of the Constitution, and what mean the principles 
and the habits of English liberty, that will not allow any- 
body enjoying those liberties to be dra\\Ti into question 
criminally upon any technical or formal view of the law to 
be administered by hide-bound authority or judges estab- 
lished and devoted to the prosecution of crime; what mean 
those fundamental provisions of our liberty, that no man 
shall be put on trial on an accusation of crime, though for- 
mally committed, unless the grand jury shall choose to bring 
him under inculpation, and that when thus brought under 
inculpation, he shall not be condemned by any judge or 
magistrate, but the warm and living condemnation of his 
peers shall be added to the judicial determination, or he 
shall go free.'* Surely we have not forgotten our rights and 
our liberties, and upon what they rest, that we should bring 
a President of the United States under a formal apparatus 
of iron operation, that by necessity, if you set it agoing, shall, 
without crime, without fault, without turpitude, without 
moral fault even of violating a statute that he believed to 
be a statute binding upon him, bring about this monstrous 
conclusion — I do not mean in any condemnation of it, but 
monstrous in its dimensions — of depriving him of his office 
and the people of the country of an executive head. 

RECESS OF THE COURT 

I am quite amazed, Mr. Chief Justice and Senators, at 
the manner in which these learned managers are disposetl 
to bear down upon people that obey the Constitution to 
the neglect or avoidance of a law. It is the commonest 
duty of the profession to advise, it is the commonest duty 
of the profession to maintain and defend, the violation 



392 SPEECHES OF WILLIAM MAXWELL EVARTS 

of a law in obedience to the Constitution; and in the 
case of an officer whose duty is ministerial, whose whole 
obligation in his official capacity is to execute or to give 
free course to a law, even when the law does not bear at all 
upon him or his rights, the officer may appeal to the Courts 
if he acts in good faith and for the purpose of the public 
service, and with a view of ascertaining by the ultimate 
tribunal in season to prevent public mischiefs, whether the 
Constitution or the law is to be the rule of his conduct, and 
whether they be at variance. 

Let me ask your attention to a case in Selden's Reports 
in the New York Court of Appeals (3 Selden page 9), the 
case of Newell, the auditor of the canal department, in error, 
against the people. The Constitution of the State of New 
York contains provisions restrictive upon the capacity or 
power of the legislature to incur public debt. The legis- 
lature, deeming it, however, within its right to raise money 
for the completion of the canals upon a pledge of the canals 
and their revenues, not including what may be called the 
personal obligation of the State, a dry mortgage as it were, 
not involving debt, but only carrying the pledge, undertook 
to, and did, raise a loan of $6,000,000. Mr. Newell, the 
canal auditor, when a draft was drawn upon him in his offi- 
cial capacity, which it became him as a ministerial officer, 
obedient to the law, to honor and proceed upon, refused it 
honor, and raised the question whether this act was consti- 
tutional. Well, now, he ought to have been impeached! 
He ought to have had the senate and the court of appeals of 
New York convened on him and been removed from office! 
The idea of a canal auditor setting himself up against what 
the learned manager calls law! He set himself up in favor 
of law and against its contravention, and the question was 
carried through the Supreme Court of that State, and that 
Court decided that the law was constitutional, but upon 
an appeal to the court of appeals that court held it unconsti- 



lAIPEACHMENT OF PRESIDENT JOHNSON 393 

tutlonal, and the $6,000,000 loan was rolled away as a scroll, 
needing to be fortified by an indemnifying proceeding amend- 
ing the constitution and extending its provisions. 

Now, I should like to know if the President of the United 
States, who has taken an oath to preserve, protect, and 
defend the Constitution in reference to a law that is made 
over his head and on his right, and over and on nothing else 
in this nation, cannot appeal to the Constitution? And 
when he does make the appeal is the Constitution to answer 
him, through the House of Representatives, "We admit, for 
argument, that the law is unconstitutional; we admit it 
operates on you and your trust-right, and nothing else; we 
admit that you were going to raise the constitutional ques- 
tion, and yet the process of impeachment is the peril under 
which you do that, and its axe is to cut off your head for 
questioning an unconstitutional law that operates upon your 
right and contravenes that Constitution which you have 
sworn to protect and defend in every department of the 
government, on and for the legislature, on and for the judi- 
ciary, on and for the people, on and for the executive power"? 
How will our learned managers dispose of this case of Newell, 
the auditor, against the people of the State of New York — a 
worthy, an upright, a useful, a prosperous assertion in the 
common interest and for the maintenance of the constitu- 
tion, of a duty to the people? 

And are we such bad citizens when we advise that the Con- 
stitution of the United States may be upheld, and that any- 
body, without a breach of the peace and in an honest purpose, 
may make a case that the instance may be given whereby 
the judgment of the Court may be had and the Constitution 
saved from violation? Not long since the State of New 
York passed a law levying a tax on brokerage sales in the 
city of New York of a half or three-fourths per cent, on all 
goods that should be sold by brokers, seeking to raise for 
the revenue purposes of the State of New York about ten 



394 SPEECHES OF WILLIAM MAXWELL EVARTS 

million dollars on the brokers' sales of merchandise, which 
sales distribute through the operations of that emporium 
the commerce of the whole country for consumption through 
all the States in the Union. Your sugar, your tea, your 
coffee that you consume in the valley of the Mississippi was 
to be made to pay a tax in the city of New York to support 
the State of New York in its government by that tax; and 
they made it penal for any broker to sell without giving a 
bond and paying the tax. Was it very wicked for me, when 
all the brokers were in this distress, to advise them that the 
shortest way to settle that matter was not to give the bond.?^ 
And when one of them, one of the most respectable citizens 
of the city, was indicted by the grand jury for selling coffee 
without giving a bond, and it came before the Courts, in- 
stead of having, as I supposed when I gave my advice, to 
come up to the Supreme Court of the United States to vindi- 
cate the Constitution of the United States, I had the good 
fortune to succeed in the Court of Appeals of the State of 
New York itself, that court holding that the law was uncon- 
stitutional, and the indictment failed. Was I a bad citizen 
for saving the Constitution of the United States against 
these infractions of law? Was the defendant in the indict- 
ments a bad citizen for undertaking to obey the Constitu- 
tion of the United States? Where are your constitutional 
decisions — McCulloch vs. Manjland; Broivn vs. Maryland; 
the bank-tax cases — all these instances by which a constitu- 
tion is arrayed for the protection of the rights which it 
secures? It is always by instances, it is always by acts; and 
the only ethical condition is that it shall be done without a 
breach of the peace and in good faith. 

How is it with people in office that violate, sometimes, the 
law? Is it true that they must necessarily be punished for 
it? Mr. Lincoln, before the "invasion" or "insurrection" 
broke out, had raised the case of the Constitution for the 
suspension of the habeas corpus, undertook to arrest a mis- 



IMPEACHMENT OF PRESIDENT JOHNSON 395 

chief that was going on at Key West, where, through the 
forms of peace, an attack was made upon the Government 
fort there through the habeas corpus. An excellent way to 
take a fort ! I do not know whether the honorable manager 
[Mr. Butler], who is so good a lawyer, tried that in all his 
military experience or not, but the habeas corpus was 
resorted to down in Florida to empty that fort of all its 
soldiers, and was succeeding admirably. A judge issued the 
habeas corpus; the soldier was brought out, and then he 
was free; and so the fort would have been taken by habeas 
corpus. President Lincoln suspended the habeas corpus, 
violating the law, violating the Constitution. Should he 
have been impeached.'^ Is it necessary that a man should 
be impeached.'* What did he do.^* He suspended it by 
proclamation of the 10th of May, 1861, to be found in volume 
twelve Statutes at Large, page 1260; and at the opening of 
the next session he referred to the fact that the legality of 
the measures was questioned, and said they were ventured 
upon under a public necessity, and submitted to the judg- 
ment of Congress whether there should be legislation or not. 
That is found on pages 12 and 13 of the Senate Journal, 
first session thirty-seventh Congress, 1861. 

There were various other acts of this great, heroic, good 
President — the arrest of the members of the legislature of 
Maryland, never justified by any law or any constitution 
that I know of, but wholly justified by duty to the country. 
And it so happens, what every statesman knows as the 
experience of government, that public action is to be judged 
by public men and public officers as private actions are to 
be judged by private men, according to the quality of the act, 
whether it shall be impeached or whether it shall be indem- 
nified. 

I do not seek this argument as going further than to meet 
the necessity which I understand these learned managers 
put forth that an infraction of a statute must carry out of 



396 SPEECHES OF WILLIAM MAXWELL EVARTS 

office any President of the United States who is so guilty. 
Why, the very next statute in the book before me, after 
the eivil-office-tenure act, on page 232 of the volume, is an 
act to declare valid and conclusive certain proclamations 
of the President and acts done in pursuance thereof, or of 
his orders, for the suppression of the late rebellion against 
the United States. The military commissions had been 
declared invalid by the Supreme Court, and we have an act 
of indemnity covering a multitude of formal, technical sins 
by indemnity and protection to have the same effect as if 
the law had been passed before they were performed. So, 
therefore, this dry, dead interpretation of law and duty by 
which act, unqualified, unscrutinized, unweighed, unmeas- 
ured, is to form the basis of necessary action of the guillotine 
of impeachment, disappears wholly under the clear, bright, 
and honest light which true statesmanship sheds upon the 

subject. 

I may as conveniently at this point of the argument as at 
any other pay some attention to the astronomical punish- 
ment which the learned and honorable manager, Mr. 
Boutwell, thinks should be applied to this novel case of 
impeachment of the President.* 

* At the close of Mr. Boutwell's argument is the following extravagantly rhetori- 
cal passage: 

Travellers and astronomers inform us that in the southern heavens, near the 
southern cross, there is a vast space which the uneducated call the hole in the sky, 
where the eye of man, with the aid of the powers of the telescope, has been unable 
to discover nebulse, or asteroid, or comet, or planet, or star, or sun. In that 
dreary, cold, dark region of space, which is only known to be less than inflnite by 
the evidences of creation elsewhere the Great Author of celestial mechanism has 
left the chaos which was in the beginning. If this earth were capable of the senti- 
ments and emotions of justice and virtue, which in human mortal beings are the 
evidences and the pledge of our Divine origin and immortal destiny, it would heave 
and throw, with the energy of the elemental forces of nature, and project this 
enemy of two races of men into that vast region, there forever to exist in a solitude 
eternal as life, or as the absence of life, emblematical of, if not really, that "outer 
darkness" of which the Savior of man spoke in warning to those who are the 
enemies of themselves, of their race and of their God. 



IMPEACHMENT OF PRESIDENT JOHNSON 397 

Cicero, I think it is, who says that a lawyer should know 
everything, for sooner or later there is no fact in history, in 
science, or of human knowledge that will not come into play 
in his arguments. Painfully sensible of my ignorance, being 
devoted to a profession which "sharpens and does not en- 
large the mind" I yet can admire without envy the supe- 
rior knowledge evinced by the honorable manager. Indeed, 
upon my soul, I believe he is aware of an astronomi- 
cal fact which many professors of that science are wholly 
ignorant of. But nevertheless, while some of his honorable 
colleagues were paying attention to an unoccupied and un- 
appropriated island on the surface of the seas, Mr. Manager 
Boutwell, more ambitious, had discovered an untenanted 
and unappropriated region in the skies, reserved, he would 
have us think, in the final councils of the Almighty, as the 
place of punishment for convicted and deposed American 
Presidents. 

At first I thought that his mind had become so "enlarged" 
that it was not "sharp" enough to discover the Constitution 
had limited the punishment; but on reflection I saw that he 
was as legal and logical as he was ambitious and astro- 
nomical, for the Constitution has said "removal from 
office," and has put no limit to the distance of the removal 
so that it may be, without shedding a drop of his blood, or 
taking a penny of his property, or confining his limbs, instant 
removal from office and transportation to the skies. Truly, 
this is a great undertaking; and if the learned manager can 
only get over the obstacles of the laws of nature the Con- 
stitution will not stand in his way. He can contrive no 
method but that of a convulsion of the earth that shall 
project the deposed President to this infinitely distant space; 
but a shock of nature of so vast an energy and for so great 
a result on him might unsettle even the footing of the firm 
members of Congress. We certainly need not resort to so 
perilous a method as that. How shall we accomplish it? 



398 SPEECHES OF WILLIAM MAXWELL EVARTS 

Why, in the first place, nobody knows where that space is 
but the learned manager himself, and he is the necessary 
deputy to execute the judgment of the Court. 

Let it then be provided that in case of your sentence of 
deposition and removal from office the honorable and astro- 
nomical manager shall take into his own hands the execution 
of the sentence. With the President made fast to his broad 
and strong shoulders, and, having already essayed the flight 
by imagination, better prepared than anybody else to execute 
it in form, taking the advantage of ladders as far as ladders 
will go to the top of this great Capitol, and spurning then 
with his foot the crest of Liberty, let him set out upon his 
flight while the two houses of Congress and all the people 
of the United States shall shout, "Sic itur ad astra." 

But here a distressing doubt strikes me; how will the man- 
ager get back. He will have got far beyond the reach of 
gravitation to restore him, and so ambitious a wing as his 
could never stoop to a downward flight. Indeed, as he 
passes through the constellations, that famous question of 
Carlyle by which he derides the littleness of human 
affairs upon the scale of the measure of the heavens, "What 
thinks Bceotes as he leads his hunting dogs up the zenith 
in their leash of sidereal fire?" will force itself on his notice. 
What, indeed, would Boeotes think of this new constella- 
tion? 

Besides, reaching this space, beyond the power of Congress 
even "to send for persons and papers" how shall he return, 
and how decide in the contest, there become personal and 
perpetual, the struggle of strength between him and the 
President? In this new revolution, thus established forever, 
who shall decide which is the sun and which is the moon? 
Who determine the only scientific test— which reflects the 
hardest upon the other? 

If I have been successful at all in determining the general 
latitude of the imputed ofl'ence as not bringing it, under the 



IMPEACHMENT OF PRESIDENT JOHNSON 399 

circumstances which this evidence attaches to it, to the qual- 
ity and grade of impeachable offences, I may now be pre- 
pared, and I hope with some commendable brevity, to notice 
what I yet regard as important to the course of my argu- 
ment, and what I assigned as the second topic of it, to show 
that all else is political; but I wish to draw your attention 
also to what I think is a matter of great moment, a matter 
of great concern and influence for all statesmen, and for all 
lovers of the Constitution and of the country — to the par- 
ticular circumstances under which the two departments of 
the Government now brought in controversy are placed. I 
speak not of persons, but of the actual constitutional pos- 
session of the two departments. 

The oflSce of President of the United States, in the view 
of the framers of the Constitution, and in the experience of 
our national history, and in the esteem of the people, and in 
the ambition of all who aspire to that great place by worthy 
means, is an office of great trust and power. It has great pow- 
ers. They are not monarchical or tending to monarchy, be- 
cause the tenure of the office, its source of original commission, 
and its return of the trust to those who control it, and its 
amenability under the Constitution to this process of im- 
peachment and the authority of Congress, save it from being 
at all dangerous to the liberties of the nation. Yet it is, 
and is intended to be, an office of great authority, and the 
Constitution in its co-ordinate department cannot be sus- 
tained without maintaining all the authority that the Con- 
stitution has intended for this executive office. But it 
depends for its place in the Constitution upon the fact, the 
practical fact, that its authority is committed by the suffrage 
of the people, and that when this authority is exerted it is 
not by individual purpose or will, or upon the mere strength 
which a single individual can oppose to the collective power 
of the Congress of the United States. It is because and as 
the people, who by their suffrage have raised the President 



400 SPEECHES OF WILLIAM MAXWELL EVARTS 

to his place, are behind him, holding up his hands, speaking 
with his voice, sustaining him in his high duties, that the 
President has the place and can maintain it under the 
Constitution. 

This great power is safe then to the people for the reasons 
I have stated, and it is safe to the President because the 
people are behind him and have just exhibited their confi- 
dence by the suffrage that has promoted him. When, 
however, alas, our Constitution comes to this trial that one 
is lifted to the presidential office who has not received the 
suffrage of the people for that office, then at once discord, 
dislocation, deficiency, difficulty show themselves; then at 
once the great powers of the office which were consonant 
with a free constitution and with the supremacy of popular 
will, by the fact that for a brief term the breath of life of the 
continuing favor of the people gave them efficacy and 
strength, find no support in fact. Then it is that in the 
criticisms of the press, in the estimates of public men, in 
the views of the people, these great powers, strictly in trust 
and within the Constitution, seem to be despotic and per- 
sonal. And then, if we will give due force to another diffi- 
culty that our system of vicious politics has introduced, and 
that is that in the nomination for the two offices, selecting 
always the true leader of the popular sentiment of the time 
for the place of President, we look about for a candidate for 
the Vice-Presidency to attract minority and to assuage differ- 
ences, and to bring in inconsistent support, and make him 
different from the President in political position and in 
general circumstances for popular support, and couple with 
the fact that I have spoken of in the Constitution, and which 
belongs to it, this vice in our politics, then when the Vice- 
President becomes President of the United States, not only 
is he in the attitude of not having the popular support for 
the great powers of the Constitution, but he is in the condi- 
tion of not having the party support for the fidelity and main- 



IMPEACHMENT OF PRESmENT JOHNSON 401 

tenance of his authority that are necessary. Then, adhering 
to his original opinions, to the very opinions and poHtical 
attitude which form the argument for placing him in the 
second place of authority, he is denounced as a traitor to 
his party, and is watched and criticised by all the leaders of 
that party. 

I speak not particularly in reference to the present 
presidential term and its incumbent, and the actual condi- 
tion of politics here; I speak of the very nature of the case. 
All the public men, all the ambitious men, nay, all the men 
interested in the public service, in carrying on the Govern- 
ment for the purposes and with the views, in the interest of 
duty, of the party, have made their connections, and formed 
their views, established their relations with the President 
who has disappeared. They then are not in the attitude of 
support, personal or political, that may properly be main- 
tained among the leaders of a party, and that is implied 
in the fact that an election has taken place by the joint 
efforts, crowning in the final result the President of the selec- 
tion of the people. Then it is that high words are inter- 
changed. Then it is that ambitious men, who had framed 
their purposes, both for the present and for the future, upon 
the footing of the presidential predominance that had been 
secured by the election, find these plans dislocated and dis- 
turbed; and then it is that if wisdom and prudence and the 
personal qualities of pacification and of accommodation and 
of attraction are wanting upon the one side and the other, 
terrible evils threaten the conduct of the Government and 
the peace of the State. It was thus, as we all know by look- 
ing back to the experience of the whig party, that differ- 
ences, even in times of peace and of quiet, had been urged 
so far in the presidency of Mr. Tyler, that an impeachment 
was moved against him in the House of Representatives, 
and had more than one hundred supporters; and yet when it 
was all over, nobody, I think, could have dreamed that there 

28 



402 SPEECHES OF WTLUAM MAXWELL EVARTS 

was anything in the conduct of Mr. Tyler, in the matter 
complained of, that was just ground for impeachment. 
So, too, in great part during the incumbency of Mr. Fillmore, 
elevated to the presidency, his action and his course, tem- 
pered and moderated as it was by some of the personal quali- 
ties that I have stated, was yet carried on in resistance to the 
leading ideas of the party that had raised him to power. 

Then the opposition, seizing upon this opportunity, en- 
courage the controversy, urge on the quarrel, but do not 
espouse it, and thus it ends in the President being left with- 
out the support of the currents of authority that underlie 
and vivify the Constitution of the United States— the favor 
of the people; and so when this unfortunate, this irregular 
conditio Q of the executive office concurs with times of great 
national juncture, of great and serious oppression and diffi- 
culty of public affairs, then at once you have at work the 
special, the peculiar, the irregular operation of forces that 
expose the Constitution, left unprotected and undefended 
with the full measure of support that every department of 
the Government should have to resist the other, pressing on 
to dangers and to difficulties that may shake and bring down 
the pillars of the Constitution itself. 

I suggest this to you as wise men, to understand how out of 
circumstances, for which no man is responsible, attributable 
to the working of the Constitution itself, in this effort to 
provide a successor, and to the inattention paid to it in the 
suffrages of the people and the selections of the politicians, 
how there is a weakness, and a special weakness, that the 
presidency is, as it were, an undefended fort, and see to it 
that the invasion is not urged and made successful by the 
temptation thus presented. 

This exception, weakness of the presidency under our 
Constitution, is encountered in the present state of affairs 
by an extraordinary development of party strength in the 
Congress. There are in the Constitution but three barriers 



IIVIPEACHMENT OF PRESIDENT JOHNSON 403 

against the will of a majority of Congress within the scope 
of their authority. One is that it requires a two-thirds vote 
to expel a member of either house; another that a two-thirds 
vote is necessary to pass a law over the objections of the 
President; and another, that a two-thirds vote of the Senate, 
sitting as a court for the trial of impeachment, is requisite to 
a sentence. And now how have these two last protections 
of the executive office disappeared from the Constitution in 
its practical working by the condition of parties that has 
given to one the firm possession by a three-fourths vote, I 
think in both houses, of the control of the action of each 
body of the legislature? Reflect upon this. I do not touch 
upon the particular circumstance that the non-restoration 
of the southern States has left your numbers in both houses 
of Congress less than they might under other circumstances 
be. I do not calculate whether that absence diminishes or 
increases the disproportion that there would be. Possibly 
their presence might even aggravate the political majority 
which is thus arrayed and thus overrides practically all the 
calculations of the presidential protection through the guar- 
antees of the Constitution; for, what do the two-thirds 
provisions mean? They meant that in a free country, 
where elections were diffused over a vast area, no congress- 
man having a constituency of over seventy or eighty thou- 
sand people, it was impossible to suppose that there would 
not be a somewhat equal division of parties, or impossible 
to suppose that the excitements and zeal of party could 
carry all the members of it into any extravagance. I do not 
call them extravagances in any sense of reproach; I merely 
speak of them as the extreme measures that parties in poli- 
tics, and under whatever motives, may be disposed to adopt. 
Certainly, then, there is ground to pause and consider, 
before you bring to a determination this great struggle 
between the co-ordinate branches of the Government, this 
agitation and this conclusion in a certain event of the ques- 



404 SPEECHES OF WILLIAM MAXWELL EVARTS 

tion whether the co-ordination of the Constitution can be 
preserved. Attend to these special circumstances and deter- 
mine for yourselves whether under these influences it is best 
to urge a contest which must operate upon the framework 
of the Constitution, and its future, unattended by any excep- 
tions of a peculiar nature that govern the actual situation. 
Ah, that is the misery of human affairs, that the stress 
comes and has its consequence when the system is least 
prepared to receive it. It is the misery that disease, casual, 
circumstantial, invades the frame when health is depressed 
and the powers of the constitution to resist it are at the 
lowest ebb. It is that the gale rises and sweeps the ship to 
destruction when there is no sea-room for it and when it is 
upon a lee-shore. And if concurrent with that danger to the 
good ship her crew be short, her helm unsettled, and disorder 
begins to prevail, there comes to be a final struggle for the 
maintenance of mastery against the elements and over the 
only chances of safety, how wretched is the condition of 
that people whose fortunes are embarked in that ship of 
state ! 

What other protection is there for the presidential office 
than these two-thirds guarantees of the Constitution that 
have disappeared? The Supreme Court placed there to 
determine, among the remarkable provinces of its jurisdiction, 
the lines of separation and of duty and of power under our 
Constitution between the legislature and the President. 
Ah! under this evidence, received and rejected, the very 
effort of the President was, when the two-thirds majorities 
had urged the contest against him, to raise a case for the 
Supreme Court to decide; and then the legislature, coming 
in by its special condition of impeachment, intercepts the 
effort, and brings his head again within the mere power of 
Congress, where the two-thirds rule is equally ineffectual 
as between the parties to the contest. 

This is matter of grave import, of necessary consideration. 



IMPEACmiENT OF PRESIDENT JOHNSON 405 

and which, with the people of this country, witli watchful 
foreign nations, and in the eyes of history, will be one of the 
determining features of this great controversy; for great a^ 
is the question in the estimate of the managers or of ourselves 
or of the public intelligence of this people, of how great the 
power should be on one side or the other, with Congress or 
with the President, that question sinks into absolute insig- 
nificance compared with the greater and higher question, the 
question that has been in the Constitution, that has been in 
the minds of philosophers, of publicists, and of statesmen 
since it was founded, whether it was in the power of a written 
constitution to draw lines of separation and put up buttresses 
of defence between the co-ordinate branches of the Govern- 
ment? And with that question settled adversely with a 
determination that one can devour, and having the power, 
will devour the other, then the balances of the American 
Constitution are lost and lost forever. Nobody can rein- 
state in paper what has once been struck down in fact. 
Mankind are governed by instances, not by resolutions. 

And then, indeed, there is placed before the people of this 
country either despair at the theory of paper constitutions, 
which have been derided by many foreign statesmen, or 
else an attempt to establish new balances of power by which, 
the poise of the different departments being more firmly 
placed, one can be safe against the other. But who can be 
wiser than our fathers? Who can be juster than th€\v? 
Who can be more considerate or more disinterested than 
they? And if their descendants have not the virtue to main- 
tain what they so wisely and so nobly established, how can 
these same descendants hope to have the virtue and the 
wisdom to make a better establishment for their posterity? 

Nay, Senators, I urge upon you to consider whether you 
will not recoil from settling so tremendous a subject under 
so special, so disadvantageous, so disastrous circumstances 
as I have portrayed to you in the particular situation of 



406 SPEECHES OF WILLIAM MAXWELL EVARTS 

these branches of the Government. A stronger Executive, 
with an absolute veto, with a longer term, with more per- 
manent possession and control of official patronage, will be 
necessary for the support of this executive department, if 
the wise and just and considerate measure of our ancestors 
shall not prove, in your judgment, sufficient; or, if that be 
distasteful, if that be unacceptable, if that be inadmissible, 
then we must swing it all over into the omnipotence of 
Congress, and recur to the exploded experiment of the con- 
federation, where Congress was executive and legislative, all 
in one. 

There is one other general topic, not to be left unnoticed 
for the very serious impression that it brings upon the politi- 
cal situation which forms the staple — I must say it — of the 
pressure on the part of the managers to make out a crime, a 
fault, a danger that should enlist your action in the terrible 
machinery of impeachment and condemnation. I mean the 
very peculiar political situation in the country itself and 
in the administration of this Government over the people 
of the country, which has been the womb from which has 
sprung this disorder and conflict between the departments 
of the government. I can, I think, be quite brief about it, 
and certainly shall not infringe upon any of the political 
proprieties of the occasion. 

The suppression of an armed rebellion and the reduction 
of the revolted States to the power of the Government, when 
the region and the population embraced in the rebellion 
were so vast, and the head to which the revolt had come was 
so great, and the resistance so continuous, left a problem of 
as great difficulty in human aflairs as was ever proposed to 
the actions of any government. The work of pacification 
would have been a severe task for any government after so 
great a struggle, when so great passions were enlisted, when 
so great wounds had been inflicted, when so great discontents 
had urged the controversy, and so much bitterness had sur- 



IIVIPEACHMENT OF PRESIDENT JOHNSON 407 

vived its formal settlement; but wonderful to sav, with 
this situation, so difficult as to surpass almost the powers of 
government as exhibited in any former instance in the his- 
tory of the world, there occurred a special circumstance that 
by itself would have tasked all the resources of statesman- 
ship under even a simple government. I mean the emanci- 
pation of the slaves, which had thrown four millions of human 
beings, not by the processes of peace, but by the sudden blow 
of war, into the possession of their freedom, which had 
changed at once, against their will, the relation of all the 
rest of the population to these men that had been their 
slaves. 

The process of adaptation of society and of law to so grave 
a social change as that, even when accomplished in peace, 
and when not disturbed by the operations of war and by the 
discontents of a suppressed rebellion, are as much as any 
wisdom or any courage, or any prosperity that is given to 
government, can expect to ride through in safety and peace. 
When, then, these two great political facts concur and i)ress 
upon the Government that is responsible for their conduct, 
how vast, how difficult, how intractable and unmanageable 
seems the posture! 

But this does not represent the measure or even the prin- 
cipal feature of the difficulty, \^^len the government, whose 
arms have triumphed and suppressed resistance is itself, by 
the theory and action of the Constitution, the government 
that, by peaceful law, is to maintain its authority, the process 
is simple; but under our complex Government, according to 
the theory and the practice, the interests and the feelings, 
the restored Constitution surrenders their domestic affairs 
at once to the local governments of the people who have been 
in rebellion. And then arises what has formed the staple 
of our politics for the last four years, what has tried the 
theory, the wisdom, the courage, the patriotism of all. It 
is, how far, under the Constitution as it stands, the General 



408 SPEECHES OF WILLIAM MAXWELL EVARTS 

Government can exercise absolute control in the transition 
period between war and absolute, restored peace, and how 
much found to be thus unmanageable shall be committed 
to changes of the Constitution. And when we understand 
that the great controversy in the formation of the Constitu- 
tion itself was how far the General Government should be 
intrusted with domestic concerns, and when the final triumph 
and the general features of the Constitution that the people 
of the States were not willing, in the language of Mr. Ells- 
worth, to intrust the General Government with their domestic 
interests, we see at once how wide, how dangerous, how 
difficult the arena of controversy, of constitutional law and 
of difference of opinion as to what was or is constitutional, 
and if it be not, of what changes shall be or ought to be 
made in the Constitution to meet the practical situation. 

Then when you add to this that as people divide on these 
questions, and as the practical forces on one side and the 
other are the loyal masses and the rebel masses, whoever 
divides from his neighbor, from his associate, from his party 
adherents in that line of constitutional opinion and in that 
line of governmental action, which seems to press least 
changes upon the Constitution and least control upon the 
masses lately in rebellion, will be suspected and charged and 
named and called an ally of traitors and rebels, you have at 
once disclosed how our dangerous politics have been brought 
to the head in which these names of "traitor" and of "rebel," 
which belong to war, have been made the current phrases of 
political discussion. 

I do not question the rectitude nor do I question the 
wisdom of any positions that have been taken as matter of 
argument or as matter of faith or as matter of action in the 
disposition of this peculiar situation. I only attract your 
attention to the necessities and dangers of the situation 
itself. We were in the condition in which the question of 
the surrender to the local communities of their domestic 



IMPEACHMENT OF PRESIDENT JOHNSON 409 

affairs, which the order of the Constitution had arranged for 
the peaceful situation, became impossible without the gravest 
dangers to the State, both in respect to the public order and 
in respect to this changed condition of the slave. 

In English history the Commons were urged, after they 
had rejected the king from the British constitution and found 
the difficulty of making things work smoothly, stare supra 
antiquas vias; but, said Sergeant Maynard, "It is not the 
question of standing upon the ancient ways, for we are not 
on them." The problem of the Constitution is, as it was 
then, how to get upon the ancient ways from these paths 
that disorder and violence and rebellion had forced us into; 
and here it was that the exasperations and the exacerbations 
of politics came up mingling with charges of infidelity to 
party and with treason, moral treason, political treason, I 
suppose, to the state. How many theories did we have? 

In this Senate, if I am not mistaken, one very influential 
and able and eloquent senator was disposed to press the 
doctrines of the Declaration of Independence into being 
working forces of our constituted liberty, and a sort of pre- 
constitutional theory was adopted to suit the logical and 
political difficulties of the case. In another House a great 
leader was disposed to put it upon the trans-constitutional 
necessities that the situation itself imposed in perfect peace 
as in absolute and flagrant war. And thus it was that minds 
trained in the old school, attached to the Constitution, un- 
able as rhetoricians or as reasoners to adopt these learned 
phrases and these working theories of preconstitutional or 
trans-constitutional authority and obligation, were puzzled 
among the ruins of society that the war had produced; and 
thus, as it seems to me, we find these concurring dangers 
leading ever to an important and necessary recognition, by 
whoever has to deal with them, of the actual and practical 
influences that they have upon the controversy. 

And now let me urge here that all this is within the prov- 



410 SPEECHES OF WILLIAM ^L\XWELL EVARTS 

ince of politics; and a free people are unworthy of their 
freedom and cannot maintain it if their public men, their 
chosen servants, are not able to draw distinctions between 
legal and constitutional offence and odious or even abomi- 
nable politics. Certainly it is so. Idem sentire de republicd, 
to agree in opinion concerning the public interest is the 
bond of one party, and diversity from those opinions the 
bond of the other; and where passions and struggles of force 
in any form of violence or of impeachment as an engine of 
power come into play, then freedom has become license, and 
then party has become faction, and those who do not with- 
hold their hand until the ruin is accomplished will be subject 
to that judgment that temperance and fortitude and patience 
were not the adequate qualities for their conduct in the 
situation in which they were placed. Oh, why not wise 
enough to stay the pressure till adverse circumstances shall 
not weigh down the state? Why not in time remember the 
political wisdom — 

Beware of desperate steps. The darkest day. 
Live till to-morrow, will have passed away. 

I hold in my hand an article from the Tribune, written 
under the instructions of this trial and put with great force 
and skill. I do not propose to read it. I bring it here to 
show and to say that it is an excellent series of articles of 
impeachment against the President of the LTnited States 
within the forum of politics for political repugnancy and 
obstruction, and an honest confession that the technical 
and formal crimes included in these articles are of very 
paltry consideration. That is an excellent article of im- 
peachment, demanding by process suitable to the forum, an 
answer; and for the discussions of the hustings and of the 
election, there it belongs; there it must be kept. But this 
being a Court, we are not to be tried for that in which we are 
not inculpated. How wretched the condition of him who 



IMPEACHJVIENT OF PRESIDENT JOHNSON 411 

is to be thus oppressed by a vague, uncertain shadow which 
he cannot oppose or resist ! If the honorable managers will 
go back to the source of their authority, if they will obtain 
what was once denied them, a general and open political 
charge, it may, for aught I know, be maintainable in law; 
it may be maintainable in fact; but then it would be brought 
here; it would be written down; its dimensions would be 
known and understood; its weight would be estimated; the 
answer could be made. 

And then your leisure and that of the nation being occu- 
pied with hearing witnesses about political differences and 
the question of political repugnance and obstructions upon 
the side of the President, those who should be honored with 
his defence in that political trial would at least have the 
opportunity of reducing the force of the testimony against 
them, and of bringing opposing and contravening proofs; 
and then, at least, if you would have a political trial, you 
would have it with name and with substance to rest upon. 
But the idea that a President of the United States is to be 
brought into the procedure of this Court by a limited accusa- 
tion, found "not guilty" under that, and convicted on an 
indictment that the House refused to sustain, or upon that 
wider indictment of the newspaper press, and without an 
opportunity to bring proof or to make arguments on the 
subject, seems to us too monstrous for any intelligence within 
or without this political circle, this arena of contioversy, to 
maintain for a moment. 

I may hope, somewhat briefly, to draw your attention to 
what lies at the basis of the discussion of the power and 
authority that may be rightfully exercised or reasonably be 
assumed in the action of the President to be exercised, even 
if it should prove erroneous within the premises of this mat- 
ter between the two branches of the Government. 

The co-ordination of the powers of government is not only 
the greatest effort in the frame of a written constitution, but 



412 SPEECHES OF WILLIAM MAXWELL EVARTS 

I think it must be conceded that as it occupies the main 
portion of the Constitution itself, so it has been regarded by 
all competent critics, at home and abroad, to have been a 
work most successfully accomplished by the framers of our 
Government. Indeed, if you will look at the Constitution, 
you will find that beyond that very limited though very 
important service, of dividing what belongs to government 
and what shall be left to the liberties of the people, and then 
discriminating between what shall be accorded to the general 
government and what shall be left to the domestic govern- 
ments of the States, the whole service of the Constitution is 
to build up these three departments of the Government so 
that they shall have strength to stand as against the others, 
and not strength to encroach or overthrow. 

Much has been said about Congress as being the great 
repository of power. Why, of course it is. It is the reposi- 
tory of power and of will, and there is no difficulty in making 
Congress strong enough. Congress, that must be intrusted 
with all the strings of power and furnished with all its re- 
sources, the effort of the Constitution is to curb and restrain; 
and so you will find that almost all the inhibitions of the 
Constitution are placed upon Congress — upon Congress in 
withholding it from power over the people; upon Congress 
in withholding it from power over the States; upon Congress 
in withholding it from power over the co-ordinate branches; 
and, nevertheless, by a necessary and absolute deposit of 
authority in Congress, it is left master of the whole. This 
power of Parliament in the British constitution makes the 
Commons masters of the Government. To what purpose is 
it to provide that the justices of the Supreme Court shall 
hold their tenure for life, and that their salaries shall not be 
diminished during the term of their service, when Congress, 
by an undoubted constitutional power, may omit and refuse 
to appropriate one dollar to the support of any particular 
justice during any particular year or series of years? Never- 



IIVIPEACHMENT OF PRESmENT JOHNSON 413 

theless, the Government is to be administered by men, and 
in an elective government the trust is that the selected 
agents of the people will be faithful to their interest and will 
be endowed with sufficient intelligence to protect them. 

But simple as is the constitution of the judiciary, and 
needing no care, when you come to the executive authority, 
arises the problem which has puzzled, does puzzle, will 
puzzle all framers of government having no source and no 
ideas of authority, except what springs from the elective 
suffrage. You have the balance of the British constitution 
between the Crown and the Parliament, because it rests 
upon ideas and traditions and experience which have framed 
one portion of the Government as springing up from the 
people and in their right, and the other portion of the Govern- 
ment as descending from Divine authority and in its right; 
and you have no difficulty in enlarging, confirming, and 
bracing up the authority of Parliament, provided you leave 
standing the authority and majesty of the throne. But 
here the problem is, how, without the support of nobility, 
of the fountain of honor, of time, of strength, of inheritance, 
how under a suffrage and for a brief period to make an execu- 
tive that is strong enough to maintain itself against the 
contentions of the Constitution. 

Under these circumstances, and adjusting the balance as 
it is found in the Constitution, our ancestors disposed of the 
question. It has served us to this time. Sometimes, in 
the heat of party, the Executive has seemed too strong; 
sometimes, in the heat of party. Congress has seemed too 
strong; yet every contest and every danger passes away, 
managed, administered, controlled, protected by the great, 
superior, predominant interest and power of the people 
themselves. And the essence of the Constitution is, that 
there is no period granted by it of authority to the Senate 
in their six years' term, to the President in his four years' 
term, to the House of Representatives in their two years' 



414 SPEECHES OF WILLIAM MAXWELL EVARTS 

term, no period that cannot be lived through in patience 
subordinate and obedient to the Constitution; and that, as 
was said in the debate which I read from the convention, 
appHed to the particular topic of impeachment, there will 
be no danger when a four years' recurring election restores 
to the common master of Congress and the Executive the 
trust reposed, that there will be a temptation to carry, for 
political controversy and upon political offence, the sword of 
the Constitution, and make it peremptory and final in the 
destruction of the office. 

I beg leave, in connection with this subject, its delicacy, 
its solicitudes in the arrangement of constitutional power, 
to read two passages from a great statesman, whose words 
when he was alive were as good as anybody's, and since his 
death have not lost their wisdom with his countrymen; I 
mean Mr. Webster. In his debate upon the Panama mis- 
sion he said, in speaking of the question of the confidence 
of Congress in the Executive: 

This seems a singular notion of confidence, and certainly is not 
my notion of that confidence which the Constitution requires one 
branch of the government to repose in another. The President 
is not our agent, but, like ourselves, the agent of the people. 
They have trusted to his hands the proper duties of his office; 
and we are not to take those duties out of his hands from any 
opinion of our own that we should execute them better ourselves. 
The confidence which is due from us to the Executive and from the 
Executive to us is not personal, but official and constitutional. It 
has nothing to do with individual likings or dislikings: but re- 
sults from that division of power among departments and those 
limitations on the authority of each which belong to the nature 
and frame of our Government. It would be unfortunate, indeed, 
if our line of constitutional action were to vibrate backward and 
forward according to our opinions of persons, swerving this way 
to-day from undue attachment, and the other way to-morrow 
from distrust or dislike. This may sometimes happen from the 
weakness of our virtues or the excitement of our passions; but I 



IMPEACHMENT OF PRESIDENT JOHNSON 415 

trust it will not be coolly recommended to us as the rightful course 
of public conduct. (Webster's Works, vol. 3, p. 187.) 

Again, in his speech on the presidential protest in the 
Senate in 1834, he said: 

The first object of a free people is the preservation of their 
liberty, and liberty is only to be preserved by maintaining consti- 
tutional restraints and just division of political power. Nothing 
is more deceptive or more dangerous than the pretence of a desire 
to simplify government. The simplest governments are despo- 
tisms; the next simplest, limited monarchies; but all republics, all 
governments of law, must impose numerous limitations and quali- 
fications of authority and give many positive and many qualified 
rights. In other words, they must be subject to rule and regula- 
tion. This is the very essence of free political institutions. The 
spirit of liberty is, indeed, a bold and fearless spirit; but it is also 
a sharp-sighted spirit; it is a cautious, sagacious, discriminating, 
far-seeing intelligence; it is jealous of encroachment, jealous of 
power, jealous of man. It demands checks; it seeks for guards; 
it insists on securities; it entrenches itself behind strong defences, 
and fortifies itself vnih all possible care against the assaults of 
ambition and passion. It does not trust the amiable weaknesses 
of human nature, and, therefore, it y,i\\ not permit power to over- 
step its prescribed limits, though benevolence, good intent, and 
patriotic purpose come along with it. Neither does it satisfy itself 
with flashy and temporary resistance to illegal authority. Far 
otherwise. It seeks for duration and permanence; it looks before 
and after; and, building on the experience of ages which are past, 
it labors diligently for the benefit of ages to come. This is the 
nature of constitutional liberty; and this is our liberty, if we will 
rightly understand and preserve it. Every free government is 
necessarily complicated because all such governments establish 
restraints, as well on the power of government itself as on that of 
individuals. If we will abolish the distinction of branches, and 
have but one branch; if we will abolish jury trials, and leave all 
to the judge; if we will then ordain that the legislator shall him- 
self be that judge; and if we will place the executive power in the 
same hands, we may readily simplify government. We may easily 



416 SPEECHES OF ^\TLLIAM MAXWELL EVARTS 

bring it to the simplest of all possible forms, a pure despotism. 
But a separation of departments, so far as practicable, and the 
preservation of clear lines of division between them, is the funda- 
mental idea in the creation of all our constitutions; and, doubtless, 
the continuance of regulated liberty depends on maintaining these 
boundaries. (Webster's Works, vol. 4, p. 122.) 

I think I need to add nothing to these wise, these discrim- 
inating, these absolute and peremptory instructions of this 
distinguished statesman. The difficulty and the danger are 
exactly where this government now finds them, in the with- 
holding of the strength of one department from working 
the ruin of another. 

Third Day, April 30, 1868 

Mr. EvARTS. We perceive, then, Mr. Chief Justice and 
Senators, that the subject out of which this controversy 
has arisen between the two branches of the Government, 
executive and legislative, touches the very foundations of 
the balanced powers of the Constitution; and in the argu- 
ments of the honorable managers it has to some extent been 
so pressed upon your attention. You have been made to 
believe that so weighty and important is the point in contro- 
versy as to the allocation of the power over office included in 
the function of removal, that if it is carried to the credit of 
the executive department of this Government it makes it a 
monarchy. Why, Mr. Chief Justice and Senators, what 
grave reproach is this upon the wisdom and foresight and 
civil prudence of our ancestors that have left unexamined 
and unexplored and unsatisfied these doubts or measures 
of the strength of the Executive as upon so severe a test or 
inquiry of being a monarchy or a free republic? I ask, with- 
out reading the whole of it, your attention to a passage from 
the Federalist, in one of the papers by Alexander Hamilton, 
who meets in advance these aspersions that were sought to 
be thrown upon the establishment of the executive power in 



IMPEACHMENT OF PRESIDENT JOHNSON 417 

a President. He there suggests in brief and solid discrimina- 
tions the distinctions between the Presidency and a mon- 
archy, and concludes by saying this: 

What answer shall we give to those who would persuade us that 
things so unlike resemble each other? The same that ought to 
be given to those who tell us that a government, the whole power 
of which would be in the hands of the elective and periodical 
servants of the people, is an aristocracy, a monarchy, and a 
despotism. 

But a little closer attention both to the history of the 
framing of the Constitution and to the opinions that main- 
tained a contest in the body of the convention, which should 
finally determine the general character and nature of the 
Constitution, will show us that this matter of the power of 
removal or the control of office, as disputable between the 
Executive and the Senate, touches more nearly one of the 
other great balances of the Constitution; I mean that 
balance between the weight of numbers in the people and 
the equality of States, irrespective of population, of wealth, 
and of size. Here it is, if I may be allowed to say so, that 
the opinions to which my particular attention was drawn by 
the honorable manager [Mr. Bout well], the opinions of 
Roger Sherman, had their origin. One of the most eminent 
statesmen of the last generation said to me that it was to 
Mr. Sherman and to his younger colleague, Mr. Ellsworth, 
and to Judge Paterson, of New Jersey, that we owed it, 
more than to all else in that convention, that our Govern- 
ment was made what the statesman pronounced it to be, the 
best government in the world, a federal republic, instead of 
being what it would have been but for those members of the 
convention, as this same statesman of the last generation 
expressed it, a consolidated empire, the worst government in 
the world. 

Between these two opinions it was that the controversy 

29 



418 SPEECHES OF WILLIAM MAXWELL EVARTS 

whether the Senate should be admitted into a share of the 
executive power of official appointment, the great arm and 
strength of the Government came into play; and as a part of 
his firm maintenance of the equality of the States, Mr. Sher- 
man insisted that this participation should be accorded to 
the Senate; and others resisted as too great a subtraction 
from the sum of executive power to be capable safely of this 
distribution and frittering away. Mr. Adams, the first 
President of that name, I am informed upon authority not 
doubted, coming from the opinion of his grandson, died in 
the conviction that even the participation in appointment 
that the Constitution, as construed and maintained in the 
practice of this Government, accorded to the Senate would 
be the point upon which the Constitution would fail; that 
this attraction of power to comparatively irresponsible and 
unnoticed administration in the Senate would ultimately so 
destroy the strength of the Executive with the people and 
create so great discontent with the people themselves that 
the Executive of their own choice, upon the Federal forces 
and numbers which the Constitution gives to that election, 
would not submit to the executive power thus bestowed 
being given to a body that had its constitution without any 
popular election whatever, and had its members and strength 
made up not by the wealth and power and strength of the 
people, but by the equality of the States. 

When you add to that this change which gives to the 
Senate a voice in the removal from office, and thus gives 
them the first hold upon the question of the maintenance of 
official power in the country, you change wholly the question 
of the Constitution; and instead of giving the Senate only 
the advisory force which that instrument commits to it, and 
only under the conditions that the oflSce being to be filled 
they have nothing to say but who shall fill it, and if they do 
not concur, still leave it to the Executive to name another, 
and another, and another, always proceeding from his orig- 



IMPEACHMENT OF PRESIDENT JOHNSON 419 

inal and principal motion in the matter, you change it to the 
absolute preliminary power of this body to say to the Execu- 
tive of the United States that every administrative office 
under him shall remain as it is; and these officers shall be 
over him and against him, provided they be with and for 
you; and when you add to that the power to say "until we 
know and determine who the successor will be, until we get 
the first move by the Executive's concession to us of the 
successor, we hold the reins of power that the office shall not 
be vacated," you do indeed break down at once the balance 
between the executive and the legislative power as repre- 
sented in this body of the latter department of the Govern- 
ment, and you break down the Federal election of President 
at once, and commit to the equality of States the partition 
and distribution of the executive power of this country. 

I would like to know how it is that the people of this 
country are to be made to adopt this principle of their Con- 
stitution that the executive power attributed to the Federal 
members, made up of Senators and Representatives added 
together for each State, is to go through the formality of the 
election of a President upon that principle and upon that 
calculation, and then find that the executive power that they 
supposed was involved in that primary choice and expression 
of the pubhc will is to be administered and controlled by a 
body made up of the equality of States. I would like to 
know on what plan our politics are to be carried on; how can 
you make the combinations, how the forces, how the inter- 
ests, how the efforts that are to throw themselves into a 
popular election to raise a presidential control of executive 
power, and then find that that executive power is all admin- 
istered on the principle of equality of States. I would like 
to know how it is that New York and Pennsylvania, and 
Ohio and Indiana, and Illinois and Missouri, and the great 
and growing States, are to carry the force of popular will into 
the executive chair upon the federal numbers of the electoral 



420 SPEECHES OF ^^TLLIAM ]VL\XWELL EVARTS 

colleges, and then find that Rhode Island and Delaware, and 
the distant States unpeopled, are to control the whole pos- 
session and administration of executive power. I would 
like to know how long we are to keep up the form of electing 
a President with the will of the people behind him, and then 
find him stripped of the power thus committed to him in 
the partition between the States, without regard to numbers 
or to popular opinion. There is the grave dislocation of the 
balances of the Constitution; there is the absolute destruc- 
tion of the power of the people over the presidential author- 
ity, keeping up the form of an election, but depriving it of all 
its results. And I would like to know, if by law or by will 
this body thus assumes to itself this derangement of the 
balances of the Constitution as between the States and 
popular numbers, how long New England can maintain in 
its share of executive power, as administered here, as large 
a proportion as belongs to New York, to Pennsylvania, to 
Ohio, to Indiana, to Illinois, and to Missouri together. 

I must think, Mr. Chief Justice and Senators, that there 
has not been sufficiently considered how far these principles 
thus debated reach, and how the framers of the Constitu- 
tion, when they came to debate in the year 1789 in Congress 
what was or should be the actual and practical allocation 
of this authority, understood the question perfectly in its 
bearing and in its future necessities. 

True, indeed, Mr. Sherman was always a stern and per- 
sistent advocate for the strength of the Senate as against 
the power of the Executive. It was there, on that point, 
that the Senate represented the equality of States; and he 
and Mr. Ellsworth, holding their places in the convention 
as the representatives of Connecticut, a State then a small 
State, between the powerful State of Massachusetts on the 
one side and New York on the other; and Judge Paterson, 
of New Jersey, the representative of that State, a small 
State, between the great State of New York on the one side 



IMPEACHMENT OF PRESIDENT JOHNSON 421 

and the great State of Pennsylvania on the other, were the 
advocates, undoubtedly, of this distribution of power to the 
Senate; and, as is well known in the history of the times, a 
correspondence of some importance took place between the 
elder Mr. Adams and Mr. Sherman, in the early days of the 
working of the Government, as to whether the fears of Mr. 
Adams that the Executive would prove too weak, or the 
purposes of Mr. Sherman that the Senate should be strong 
enough, were or were not most in accord with the principles 
of the Government. But all that was based upon the idea 
that the concurrence of the Senate, under the terms of the 
Constitution, in appointment was the only detraction from 
the supremacy and independence of executive authority. 

Now, this question comes up in this form: the power of 
removal is, and always has been, claimed and exercised by 
the Executive in this Government, separately and inde- 
pendently of the Senate. Until the act of March 2, 1867, 
the actual power of removal by the Senate never has been 
claimed. Some constructions upon the affirmative exercise 
of the power of appointment by the Executive have at 
different times been suggested, and received more or less 
support, tending to the conclusion that thus the Senate 
might have some hold of the question of removals; and now 
this act, which we are to consider more definitely hereafter, 
does not assume in terms to give the Senate a participation 
in the distinct and separate act of an executive nature, the 
removal from office. Indeed, the manner in which the Con- 
gress has dealt with the subject is quite ])eculiar. I"^nable, 
apparently, to find adequate support for the jiretention that 
the Senate could claim a share in the distinct act of removal 
or vacating of oflSce, the scheme of the law is to change the 
tenure of office, so that removability as a separate and 
independent governmental act, by whomever to be exerted, 
is obliterated from the powers of this government. Look 
at that, now, that you do absolutely strike out of the capacity 



4^2 SPEECHES OF WILLIAM MAX\^^LL EVARTS 

and resources of this government the power of removing an 
officer as a separate executive act; I mean an executive act 
in which you participate. You have determined by law 
that there shall be no vacation of an office possible, except 
wh^n and as and by the operation of completely filling it. 
And so far have you carried that principle that you do not 
even make it possible to vacate it by the concurrence of the 
Senate and the President; but you have deliberately and 
firmly determined that the office shall remaili full as an 
estate and possession of the imcumbent, from which he can 
be removed under no stress of the public necessity except 
by the fact occurring of a complete appointment for per- 
manent tenure of a successor concurred in by the Senate 
and made operative by the new appointee going into and 
qualifying himself in the office. 

This seems at the first sight a very exti aordinary provision 
for all the exigencies of a Government like ours, with its 
forty thousand officers, whose list is p'araded here before 
you, with their twenty-one millions of emoluments, to show 
the magnitude of the great prize contended for between the 
Presidency and the Senate. It is a very singular provision, 
doubtless, that in a Government which includes under it 
forty thousand officers there should be no governmental pos- 
sibility of stopping a man in or removing him from an office 
except by the deliberate succession of a permanent successor 
approved by the Senate and concurred in by the appointee 
himself going to the place and qualifying and assuming its 
duties. 

I speak the language of the act, and while the Senate is 
in session there is not any power of temporary suspension or 
arrest of fraud or violence, of danger or menace, in the con- 
duct of the subsisting officer. When you are in recess there 
is a power of suspension given to the Executive, and we are 
better off in that respect when you are in recess than when 
you are in session, for we can, by a peremptory and definite 



IMPEACHMENT OF PRESIDENT JOHNSON 423 

and appropriate action, arrest misconduct by suspension. 
But as I said before, I repeat, under this act the incumbents 
of all these offices have a permanent estate until a successor, 
with your consent and his own, is inducted into the office. 

I do not propose to discuss (as quite unnecessary to any 
decision of any matter to be passed on in your judgment) at 
any very great length the question of the constitutionality of 
this law. A very deliberate expression of opinion, after a 
very valuable and thorough debate, conducted in this body, 
in which the reasons on each side were ably maintained by 
your most distinguished members, and a very thorough 
consideration in the House of Representatives, where able 
and eminent lawyers, some of whom appear among the man- 
agers to-day, gave the country the benefit of their knowledge 
and their acuteness, have placed this matter upon a legis- 
lative judgment of constitutionality. But I think all will 
agree that a legislative judgment of constitutionality does 
not conclude a court, and that when legislative judgments 
have differed, and when the practice of the government for 
eighty years has been on one side and the new ideas intro- 
duced are confessedly of reversal and revolution in those 
ideas, it is not saying too much to say that after the expres- 
sion of the legislative will, and after the expression of the 
opinion of the legislature implied in their action, there yet 
would remain for debate among jurists and lawyers, among 
statesmen, among thoughtful citizens, and certainly properly 
within the province of the Supreme Court of the United 
States, the question whether the one or the other construc- 
tion of the Constitution, so vital in its influence upon the 
government, was the correct and the safe course for the 
conduct of the government. 

Let me ask your attention for a moment upon two points, 
to the, question as presenting itself to the minds of the Sena- 
tors, as to whether this was or was not a reversal and revolu- 
tion in the practice and theories of the government, and also 



424 SPEECHES OF WILLIAM MAXWELL EVARTS 

as to the weight of a legislative opinion. In the Senate, the 
Senator from Oregon [Mr. Williams] said: 

This bill undertakes to reverse what has heretofore been the 
admitted practice of the government; and it seemed to me that 
it was due to the exalted office of the President of the United 
States, the Chief Magistrate of the nation, that he should exercise 
this power; that he should be left to choose his own cabinet, and 
that he should be held responsible, as he will be, to the country 
for whatever acts that cabinet may perform. (Congressional 
Globe, thirty-ninth Congress, second session, p. 384.) 

This Senator touches the very marrow of the matter, that 
when you are passing this bill, which in the whole official 
service of this country reverses the practice, you should at 
least leave the exception of the cabinet officers in. That 
was the point; leaving them entirely in, and that, with that 
exception in, it was a reversal of the practice of the Govern- 
ment to all the rest, and the cabinet should be left as they 
were, because, as he said wisely, the country will hold the 
Executive responsible for what his cabinet does; and they 
will so hold him until they find out that you have robbed 
the Executive of all responsibility by robbing it of what is 
the pith of responsibility, discretion. 

The same honorable senator proceeds, in another point 
of the debate: 

I know there is room for disagreement of opinion; but it seemed 
to me that if we revolutionize the practice of the government in 
all other respects, we might let this power remain in the hands of 
the President of the United States — 

That is, the cabinet officers' appointment — 

that we ought not to strip him of this power, which is one that it 
seems to me it is necessary and reasonable that he should exercise. 
{Ibid., p. 384.) 

The honorable senator from Michigan [Mr. Howard] says : 
I agree with him — 



BIPEACHMENT OF PRESIDENT JOHNSON 425 

Referring to the senator from Indiana [Mr. Hendricks :] 

that the practical precedents of the government thus far lead to 
this interpretation of the Constitution, that it is competent for the 
President during the recess of the Senate to turn out of office a 
present incumbent, and to fill his place by commissioning another. 
This has been, I admit, the practice for long years and many 
generations; but it is to be observed, at the same time, that this 
claim of power on the part of the Executive has been uniformly 
contested by some of the best minds of the country. {Ibid., p. 
407.) 

And now, as to the weight of mere legislative construction, 
even in the mind of a legislator himself, as compared with 
other sources of authoritative determination, let me ask 
your attention to some other very pertinent observations of 
the honorable senator from Oregon [Mr. Williams] : 

Those who advocate the executive power of removal rely alto- 
gether upon the legislative construction of the Constitution, sus- 
tained by the practice and opinions of individual men. I need not 
argue that the legislative construction of the Constitution has no 
binding force. It is to be treated with proper respect; but few 
constructions have been put upon the Constitution by Congress at 
one time that have not been modified or overruled at other or 
subsequent times, so that, so far as the legislative construction of 
the Constitution upon this question is concerned, it is entitled to 
very little consideration. (Ibid., p. 439.) 

The point in the debate was that the legislative construc- 
tion of 1789, as worked into the bones of the Government l)y 
the indurating process of practice and exercise, was a con- 
struction of powerful influence on the matter; and yet the 
honorable Senator from Oregon justly pushes the proposi- 
tion that legislative construction per se — that I may not 
speak disrespectfully, I speak his words— "that legislative 
construction is entitled to very little consideration"; that 
it has "no binding force." Shall we be told that a legis- 
lative construction of March 2, 1867, and a practice under 



426 SPEECHES OF WILLIAM MAXWELL EVARTS 

it for one year that has brought the Congress face to face 
with the Executive and introduced the sword of impeach- 
ment between the two branches upon a removal from office, 
raising the precise question that an attempt by the President 
to remove a Secretary and appoint an ad interim discharge 
of its duties is to result in a removal by the Senate of the 
Executive itself and the appointment of one of its own mem- 
bers to the ad interim discharge of the duties of the Presi- 
dency? That is the issue made by a recent legislative con- 
struction. 

But the honorable Senator from Oregon, with great force 
and wisdom, as it seems to me, proceeded in the debate to 
say that the courts of law, and, above all, the Supreme Court 
of the United States, were the places to look for authoritative, 
for permanent determinations of these constitutional ques- 
tions; and it will be found that in this he but followed the 
wisdom shown in the debate in 1789 and in the final result 
of it, in which Mr. Sherman concurred as much as any 
member of that Congress, that it was not for Congress to 
name or assign the limits upon executive power by enact- 
ment nor to appropriate and confer executive power by 
endowment through an act of Congress, but to leave it, as 
Mr. White, of North Carolina, said, and as Mr. Gerry, of 
Massachusetts, said, and as Mr. Sherman, of Connecticut, 
said, for the Constitution itself to operate upon the foreign 
secretary act, and let the action be made under it by 
virtue of a claim of right under the Constitution, and who- 
ever was aggrieved let him raise his question in the courts of 
law. And upon that resolution and upon that situation of 
the thing the final vote was taken, and the matter was dis- 
posed of in that Congress; but it was then and ever since 
has been regarded as an authentic and authoritative deter- 
mination of that Congress that the power was in the Presi- 
dent, and it has been so insisted upon, so acted upon ever 
since, and nobody has been aggrieved, and nobody has raised 



IMPEACHMENT OF PRESIDENT JOHNSON 427 

the question in the courts of law. That is the force and the 
weight of the resolution of that first Congress and of the 
practice of the Government under it. 

In the House of Representatives, also, it was a conceded 
point in the debate upon this bill, when one of the ablest 
lawyers in that body, as I understand by repute, Mr. Wil- 
liams, one of the honorable managers, in his argument for 
the bill, said: 

It aims at the reformation of a giant vice in the administration 
of this Government by bringing its practice back from a rule of 
its infancy and inexperience. {Ibid., p. 18.) 

He thought it was a faulty practice; but that it was a 
practice, and that from its infancy to the day of the passage 
of the bill it was a vice inherent in the system and exercising 
its power over its action, he did not doubt. He admits, 
subsequently, in the same debate that the Congress of 1789 
decided, and their successors for three-quarters of a century 
acquiesced in this doctrine. 

I will not weary the Senate with a thorough analysis of 
the debate of 1789. It is, I believe, decidedly the most 
important debate in the history of Congress. It is, I think, 
the best considered debate in the history of the Government. 
I think it included among its debaters as many of the able 
men and of the wise men, the benefit of whose public service 
this nation has ever enjoyed, as any debate or measure that 
this Government has ever entertained or canvassed. And 
it was a debate in which the civil prudence and forecast of 
the debaters manifested itself, whichever side they took of 
the question, in wonderful wisdom, for the premises of the 
Constitution were very narrow. Most probably the ques- 
tion of removal from office as a distinct subject had never 
occurred to the minds of men in the convention. The 
tenure of office was not to be made permanent, except in 
the case of the justices of the Supreme Court, and the perio- 



428 SPEECHES OF WILLIAM MAXWELL EVARTS 

dicity of the House of Representatives, of the Senate, and 
of the Executive were fixed. Then there was an attribution 
of the whole inferior administrative official power of the 
Government to the Executive as being an executive act, 
with the single qualification, exceptional in itself, that the 
advice and consent of the Senate should be interposed as a 
negative upon presidential nomination, carrying him back 
to a substitute if they should not agree on the first nominee. 
The point raised was exactly this, and may be very briefly 
stated: those who, with Mr. Sherman, maintained that 
the concurrence in removals was as necessary as the con- 
currence in appointments, put themselves on a proposition 
that the same power that appointed should have the removal. 
That was a little begging of the question — speaking it with 
all respect — as to who the appointing power was really, 
under the terms and in the intent of the Constitution. But, 
conceding that the connection of the Senate with the matter 
really made them a part of the appointing power, the an- 
swer to the argument, triumphant as it seems to me, as it 
came from the distinguished speakers, Mr. Madison, Mr. 
Boudinot, Fisher Ames, and other supporters of the doctrine 
that finally triumphed, was this: primarily the whole busi- 
ness of official subordinate executive action is a part of the 
executive function; that being attributed in solido to the 
President, we look to exceptions to serve the turn and pre- 
cise measure of their own definition, and discard that falsest 
principle of reasoning in regard to laws or in regard to con- 
duct, that exception is to breed exception or amplification 
of exception. The general mass is to lose what is sub- 
tracted from it by exception, and the general mass is to 
remain with its whole weight not thus separately and defi- 
nitely reduced. When, therefore, these statesmen said you 
find the freedom of executive action and its solid authority re- 
duced by an exception of advice and consent in appointment, 
you must understand that that is the limit of the exception, 



BIPEACHMEXT OF PRESIDENT JOHNSON 429 

and the executive power in all other respects stands unim- 
paired. 

What, then, is the test of the consideration? Whether 
removal from office belongs to the executive power, if the 
Constitution has not attributed it elsewhere ; and then the 
question was of statesmanship, whether this debate was 
important, whether it was vital, whether its determination 
one way or the other did affect seriously the character of 
the government and its working; and I think all agreed 
that it did; and all so agreeing, and all coming to the reso- 
lution that I have stated, what weight, what significance is 
there in the fact that the party that was defeated in the argu- 
ment submitted to the conclusion and to the practice of the 
Government under it, and did not raise a voice or take a 
vote in derogation of it during the whole course of the Gov- 
ernment? 

But it does not stand upon this. After forty-five years' 
working of this system, between the years 1830 and 1835, 
the great party exacerbations between the democracy, 
under the lead of General Jackson, and the whigs, under the 
mastery of the eminent men that then filled these halls, the 
only survivor of whom, eminent then himself and eminent 
ever since, now does me the honor to listen to my remarks 
[referring to Hon. Thomas Ewing, of Ohio], then under that 
antagonism there was renewed the great debate; and what 
was the measure to which the contesting party, under 
the influence of party spirit, brought the matter? Mr. 
Webster said while he led the forces in a great array, which, 
perhaps, for the single instance combined the triumvirate 
of himself, Mr. Calhoun, and Mr. Clay, that the contrary 
opinion and the contrary practice was settled. He said: 
"I regard it as a settled point; settled by construction, set- 
tled by precedent, settled by the practice of the Government, 
settled by legislation;" and he did not seek to disturb it. 
He knew the force of those forty-five years, the whole exist- 



430 SPEECHES OF WILLIAM MAXWELL EVARTS 

ence of the nation under its Constitution upon a question 
of that kind; and he sought only to interpose a moral re- 
straint upon the President in requiring him, when he re- 
moved from office, to assign the reasons of the removal. 

General Jackson and the democratic party met the point 
promptly with firmness and with thoroughness, and in his 
protest against a resolution which the Senate had adopted 
in 1834, I think, that his action in the removal of Mr. 
Duane (though they brought it down finally, I believe, to 
the point of the removal of the deposits) had been in dero- 
gation of the Constitution and the laws, he met it with a de- 
fiance in his protest which brought up two great topics of 
debate; one the independence of the Executive in its right 
to judge of constitutional questions, and the other the great 
point that the conferring by choice of the people upon the 
President of their representation through federal numbers 
was an important part of the Constitution, and that he was 
not a man of his own will, but endued and re-enforced by 
the will of the people. That debate was carried on and 
that debate was determined by the Senate passing a vote 
which enacted its opinion that his conduct had been in dero- 
gation of the Constitution and the law; and on this very 
point a reference was made to the common master of them 
all, the people of the United States; and upon a re-election 
of General Jackson and upon a confirmation of opinion from 
the people themselves, they in their primary capacity 
acting through the authentic changes of their Government, 
by election, brought into the Senate, upon this challenge, a 
majority that expunged the resolution censuring the action 
of the Executive, "iou talk about power to decide constitu- 
tional questions by Congress, power to decide them by the 
Supreme Court, power to decide them by the Executive. 
I show you the superior power of all that has been drawn 
into the great debate, of public opinion and the determina- 
tion of the suffrage, and I say that the history of free coun- 



IMPEACHMENT OF PRESIDENT JOHNSON 431 



er 



tries, the history of popular liberty, the history of the pow 
of the people, not by passion or by violence, but by reason, 
by discretion and peaceful, silent, patient exercise of their 
power, was never shown more distinctly and more definitely 
than on this very matter, whether it is a part of the executive 
power of this country or of the legislative or senatorial 
power, that removal from office should remain in the Execu- 
tive or be distributed among the Senators. It was not my 
party that was pleased or that was triumphant, but of the 
fact of what the people thought there was not any doubt, 
and there never has been since until the new situation has 
produced new interests and resulted in new conclusions. 

Honorable Senators and Representatives will remember 
how in the debate which led to the passage of the civil 
tenure act it was represented that the authority of the first 
Congress of 1789 ought to be somewhat scrutinized because 
of the influence upon their debates and conclusions that 
the great character of the Chief Magistrate, President Wash- 
ington, might have produced upon their minds. Senators, 
why can we not look at the present as we look at the past.'* 
Why can we not see in ourselves what we so easily discern 
as possible with others.'' Why can we not appreciate it that 
perhaps the judgment of Senators and of Representatives now 
may have been warped or misled somewhat by their opin- 
ions and feelings toward the Executive as it is now filled? 
I apprehend, therefore, that this matter of party influence 
is one that is quite as wise to consider, and this matter of 
personal power in authority of character and conduct is 
quite as suitable to be weighed when we are acting as when 
we are criticising the action of others. 

Two passages I may be permitted to quote from this great 
debate as carried on in the Congress of 1789. One is from 
Mr. Madison, at page 480 of the first volume of the Annals 
of Congress : 

It is evidently the intention of the Constitution that the first 



432 SPEECHES OF WILLIAM MAXWELL EVARTS 

magistrate should be responsible for the executive department. 
So far, therefore, as we do not make the officers who are to aid 
him in the duties of that department responsible to him, he is 
not responsible to his country. Again, is there no danger that an 
oflBcer, when he is appointed by the concurrence of the Senate, and 
has friends in that body, may choose rather to risk his establish- 
ment on the favor of that branch than rest it upon the discharge 
of his duties to the satisfaction of the executive branch, which is 
constitutionally authorized to inspect and control his conduct? 
And if it should happen that the officers connect themselves with 
the Senate, they may mutually support each other, and for want of 
efficacy reduce the power of the President to a mere vapor; in 
which case his responsibility would be annihilated, and the ex- 
pectation of it unjust. The high executive officers, joined in cabal 
with the Senate, would lay the foundation of discord, and end in 
an assumption of the executive power, only to be removed by a 
revolution in the Government. I believe no principle is more 
clearly laid down in the Constitution than that of responsibility. 

Mr. Boiidinot (page 487) says: 

Neither this clause [of impeachment] nor any other goes so far 
as to say it shall be the only mode of removal: therefore, we may 
proceed to inquire what the other is. Let us examine whether it 
belongs to the Senate and President. Certainly, sir, there is 
nothing that gives the Senate this right in express terms; but they 
are authorized, in express words, to be concerned in the appoint- 
ment. And does this necessarily include the power of removal? 
If the President complains to the Senate of the misconduct of an 
officer, and desires their advice and consent to the removal, what 
are the Senate to do? Most certainly they will inquire if the com- 
plaint is well founded. To do this they must call the officer 
before them to answer. Who, then, are the parties? The su- 
preme executive officer against his assistant; and the Senate are 
to sit as judges to determine whether sufficient cause of removal 
exists. Does not this set the Senate over the head of the President? 
But suppose they shall decide in favor of the officer, what a situa- 
tion is the President then in, surrounded by officers with whom, by 
his situation, he is compelled to act, but in whom he can have no 



IMPEACHMENT OF PRESIDENT JOHNSON 433 

confidence, reversing the privilege given him by the Constitution, 
to prevent his having ofiicers imposed upon him who do not meet 
his approbation? 

In these weighty words of Mr. Boudinot and Mr. :Madi- 
son is found the marrow of the whole controversy. There 
is no escaping from it. If this body pursue the method now 
adopted, they must be responsible to the country for the 
action of the executive department; and if officers are to 
be maintained, as these wise statesmen say, over the head 
of the President, then that power of the Constitution which 
allowed him to have a voice in their selection is entirely 
gone; for I need not say that if it is to be dependent upon an 
instantaneous selection, and thereafter there is to be no 
space of repentance or no change of purpose on the part of 
the Executive as new acts shall develop themselves and new 
traits of character shall show themselves in the incumbent, 
it is idle to say that he has the power of appointment. 
It must be the power of appointment from day to day; 
that is the power of appointment for which he should be 
held responsible, if he is to be responsible at all. I wish to 
ask your attention to the opinions expressed by some of the 
statesmen who took part in this determination of what the 
effect, and the important effect, of this conclusion of the 
Congress of 1789 was. Mone of them overlooked its im- 
portance on one side or the other; and I beg leave to read 
from the life and works of the elder Adams, at page 448 of 
the first volume, the interesting comments of one, himself a 
distinguished statesman, in whom we all have confidence, 
Mr. Charles Francis Adams: 

The question most earnestly disputed turned upon the power 
vested by the Constitution in the President to remove the person 
at the head of that bureau at his pleasure. One party maintained 
it was an absolute right. The other insisted that it was subject 
to the same restriction of a ratification by the Senate which is 
required when the officer is appointed. After a long contest in 

30 



434 SPEECHES OF WILLIAM MAXWELL EVARTS 

the House of Representatives, terminating in favor of the unre- 
stricted construction, the bill came up to the Senate for its appro- 
bation. 

This case was peculiar and highly important. By an anomaly 
in the Constitution, which, upon any recognized theory, it is dif- 
ficult to defend, the Senate, which, in the last resort, is made the 
judicial tribunal to try the President for malversation in office, is 
likewise clothed with the power of denying him the agents in 
whom he may choose most to confide for the faithful execution of 
the duties of his station, and forcing him to select such as they may 
prefer. If, in addition to this, the power of displacing such as he 
found unworthy of trust had been subjected to the same control, 
it cannot admit of a doubt that the Government must, in course 
of time, have become an oligarchy, in which the President would 
sink into a mere instrument of any faction that might happen to 
be in the ascendant in the Senate; this, too, at the same time that 
he would be subject to be tried by them for offences in his depart- 
ment, over which he could exercise no effective restraint whatever. 
In such case the alternative is inevitable, either that he would have 
become a confederate with that faction, and therefore utterly 
beyond the reach of punishment by impeachment at their hands for 
offences committed with their privity, if not at their dictation, or 
else, in case of his refusal, that he would have been powerless to 
defend himself against the paralyzing operation of their ill-will. 
Such a state of subjection in the executive head to the legislature 
is subversive of all ideas of a balance of powers drawn from the 
theory of the British constitution, and renders probable at any 
moment a collision, in which one side or the other, and it is most 
likely to be the legislature, must be ultimately annihilated. 

Yet, however true these views may be in the abstract, it would 
scarcely have caused surprise if their soundness had not been ap- 
preciated in the Senate. The temptation to magnify their au- 
thority is commonly all-powerful with public bodies of every kind. 
In any other stage of the present Government than the first it 
would have proved quite irresistible. But throughout the admin- 
istration of General Washington there is visible among public 
men a degree of indifference to power and place which forms one 
of the most marked features of that time. More than once the 



I^IPEACHMENT OF PRESIDENT JOHNSON 435 

highest cabinet and foreign appointments went begging to suitable 
candidates, and begged in vain. To tliis fact it is owing that 
pubhc questions of such moment were then discussed with as much 
of personal disinterestedness as can probably ever be expected to 
enter into them an\^"here. Yet even with all these favoring cir- 
cumstances it soon became clear that the republican jealousy 
of a centralization of power in the President would combine with 
the esprit du corps to rally at least half the Senate in favor of 
subjecting removals to their control. In such a case the respon- 
sibility of deciding the point devolved, by the terms of the Consti- 
tution, upon Mr. Adams, as Vice-President. The debate was 
continued from the 15th to the 18th of July, a very long time for 
that day in an assembly comprising only twenty-two meml^ers 
when full, but seldom more than twenty in attendance. Avery 
brief abstract, the only one that has yet seen the light, is furnished 
in the third volume of the present work. Mr. Adams appears to 
have made it for the purpose of framing his own judgment in the 
contingency which he must have foreseen as likely to occur. 
The final vote was taken on the 18th. Nine Senators voted to 
subject the President's power of removal to the will of the Senate: 
Messrs. Few, Grayson, Gunn, Johnson, Izard, Langdon, Lee, 
Maclay, and Wingate. On the other hand, nine Senators voted 
against claiming the restriction: Messrs. Bassett, Carroll, Dalton, 
Elmer, Henry, Morris, Paterson, Read, and Strong. The result 
depended upon the voice of the Vice-President. It was the first 
time that he had been summoned to such a duty. It was the only 
time during his eight years of service in that place that he felt the 
case to be of such importance as to justify his assigning reasons 
for his vote. These reasons were not committed to paper, however, 
and can, therefore, never be known. But in their soundness it is 
certain that he never had the shadow of a doubt. His decision 
settled the question of constitutional power in favor of the Presi- 
dent, and, consequently, established the practice under the 
Government, which has continued down to this day. Although 
there have been occasional exceptions taken to it in argument, 
especially at moments when the executive power, wielded by a 
strong hand, seemed to encroach upon the limits of the co-orduiate 
departments, its substantial correctness has been, on the whole, 



436 SPEECHES OF WILLIAM MAXWELL EVARTS 

quite generally acquiesced in. And all have agreed that no single 
act of the first Congress has been attended with more important 
effects upon the working of every part of the Government. 

It is thus that this was regarded at the time that the trans- 
action took place. I beg now to call the attention of the 
Senate to the opinions of Fisher Ames, as expressed in 
letters written by him concurrently with the action of the 
Congress to his correspondent, an intelligent lawyer of Bos- 
ton, Mr. George Richards Minot. In a letter to Mr. Minot, 
dated the 31st of May, 1789, to be found in the first volume 
of the life of Mr. Ames, page 51, he writes: 

You dislike the responsibility of the President in the case of 
the minister of foreign affairs. I would have the President re- 
sponsible for his appointments; and if those whom he puts in are 
unfit they may be impeached on misconduct, or he may remove 
them when he finds them obnoxious. It would be easier for a 
minister to secure a faction in the Senate or get the protection of 
the Senators of his own State than to secure the protection of the 
President, whose character would suffer by it. The number of 
the Senators, the secrecy of their doings, would shelter them, and a 
corrupt connection between those who appoint to office and who 
also maintain in office and the officers themselves would be created. 
The meddling of the Senate in appointments is one of the least 
defensible parts of the Constitution. I would not extend their 
power any further. 

And again, under date of June 23, 1789, page 55 of the 
same volume: 

The debate in relation to the President's power of removal from 
office is an instance. Four days' unceasing speechifying has fur- 
nished you with the merits of the question. The transaction of 
yesterday may need some elucidation. In the Committee of the 
Whole it was moved to strike out the words, "to be removable 
by the President," &c. This did not pass, and the words were 
retained. The bill was reported to the House, and a motion made 
to insert in the second clause, " whenever an officer shall be removed 



IMPEACHMENT OF PRESIDENT JOHNSON 437 

by the President, or a vacancy shall happen in any other way," 
to the intent to strike out the first words. The first words, "to be 
removable,". &c, were supposed to amount to a legislative disposal 
of the power of removal. If the Constitution had vested it in the 
President, it was improper to use such words as would imply that 
the power was to be exercised by him in virtue of this act. The 
mover and supporters of the amendment supposed that a grant 
by the legislature might be resumed, and that as the Constitution 
had already given it to the President it was putting it on better 
ground, and, if once gained by the declaration of both houses, 
would be a construction of the Constitution, and not liable to 
future encroachments. Others, who contended against the ad- 
visory part of the Senate in removals, supposed the first ground 
the most tenable, that it would include the latter, and operate 
as a declaration of the Constitution, and at the same time expressly 
dispose of the power. They further apprehended that any change 
of position would divide the victors and endanger the final decision 
in both houses. There was certainly weight in this last opinion. 
Yet, the amendment being actually proposed, it remained only to 
choose between the two clauses. I think the latter, which passed, 
and which seems to imply the legal (rather constitutional) power 
of the President, is the safest doctrine. This prevailed, and the 
first words were expunged. This has produced discontent, and 
possibly in the event it will be found disagreement, among those 
who voted with the majority. 

This is, in fact, a great question, and I feel perfectly satisfied 
with the President's right to exercise the power, either by the 
Constitution or the authority of an act. The arguments in favor 
of the former fall short of full proof, but in my mind they greatly 
preponderate. 

You will say that I have expressed my sentiments with some 
moderation. You will be deceived, for my whole heart has been 
engaged in this debate. Indeed, it has ached. It has kept me 
agitated, and in no small degree unhappy. I am commonly op- 
posed to those who modestly assume the rank of chami)ions of 
liberty and make a very patriotic noise about the pcoi)le. It is 
the stale artifice which has duped the world a thousand times, and 
yet, though detected, it is still successful. I love liberty as well as 



438 SPEECHES OF WILLIAM MAXWELL EVARTS 

anybody. I am proud of it, as the true title of our people to dis- 
tinction above others; but so are others, for they have an interest 
and a pride in the same thing. But I would guard it by making 
the laws strong enough to protect it. In this debate a stroke 
was aimed at the vitals of the government, perhaps with the best 
intentions, but I have no doubt of the tendency to a true aristoc- 
racy. 

It will thus be seen, Senators, that the statesmen w^hom 
we most revere regarded this as, so to speak, a construction 
of the Constitution as important as the framing of itself had 
been. And now, a law of Congress having introduced a 
revolution in the doctrine and in the practice of the Govern- 
ment, a legislative construction binding no one and being 
entitled to little respect from the changeableness of legis- 
lative constructions, in the language of the honorable Senator 
from Oregon, the question arises whether a doubt, whether 
an act in reference to the unconstitutionality of this law 
on the part of the executive department is a ground of 
impeachment. The doctrine of unconstitutional law seems 
to me — and I speak w^ith great respect — to be w^holly mis- 
understood by the honorable managers in the propositions 
which they present. Nobody can ever violate an uncon- 
stitutional law, for it is not a rule binding upon him or any- 
body else. His conduct in violating it or in contravening 
it may be at variance wdth other ethical and civil conditions 
of dutv: and for the violation of those ethical and civil 
conditions he may be responsible. If a marshal of the 
United States, executing an unconstitutional fugitive slave 
bill, enters with the process of the authority of law% it does 
not follow that resistance may be carried to the extent of 
shooting the marshal; but it is not because it is a violation 
of that law; for if it is unconstitutional there can be no 
violation of it. It is because civil duty does not permit 
civil contests to be raised by force and violence. So, too, 
if a subordinate executive officer, who has nothing but 



IIMPEACHMENT OF PRESIDENT JOHNSON 439 

ministerial duty to perform, as a United States marshal 
in the service of process under an unconstitutional law, 
undertakes to deal with the question of its unconstitution- 
ality, the ethical and civil duty on his part is, as it is merely 
ministerial on his part, to have his conscience determine 
whether he will execute it in this ministerial capacity, or 
whether he will resign his office. He cannot, under proper 
ethical rules, determine whether the execution of the law 
shall be defeated by the resistance of the apparatus provided 
for its execution; but if the law bears upon his personal 
rights or official emoluments, then, without a violation of 
the peace, he may raise the question of the law and resist 
it consistently with all civil and ethical duties. 

Thus we see at once that we are brought face to face 
with the fundamental propositions, and I ask attention to a 
passage from the Federalist, at page 549, where there is a 
very vigorous discussion by Mr. Hamilton of the question 
of unconstitutional laws; and to the case of Marhury vs. 
Madison in 1 Cranch. The subject is old, but it is there 
discussed with a luminous wisdom, both in advance of the 
adoption of the Constitution and of its construction by the 
Supreme Court of the United States, that may well displace 
the more inconsiderate and loose views that have been 
presented in debate here. In the Federalist, No. 78, page 
541, Mr. Hamilton savs: 

Some perplexity respecting the rights of the courts to pronounce 
legislative acts void, because contrary to the Constitution, has 
arisen from an imagination that the doctrine would imply a supe- 
riority of the judiciary to the legislative power. It is urged that 
the authority which can declare the acts of another void must 
necessarily be superior to the one whose acts may be declared 
void. As this doctrine is of great importance in all the American 
constitutions, a brief discussion of the ground on which it rests 
cannot be unacceptable. 

There is no position which depends on clearer principles than 



440 SPEECHES OF WILLIAM MAXWELL EVARTS 

that every act of a delegated authority contrary to the tenor of 
the commission under which it is exercised is void. No legislative 
act, therefore, contrary to the Constitution, can be valid. To deny 
this would be to affirm that the deputy is greater than his prin- 
cipal ; that the servant is above his master ; that the representatives 
of the people are superior to the people themselves; that men 
acting by virtue of powers may do not only what their powers do 
not authorize, but what they forbid. 

If it be said that the legislative body are themselves the consti- 
tutional judges of their own powers, and that the construction they 
put upon them is conclusive upon the other departments, it may 
be answered that this cannot be the natural presumption, where 
it is not to be collected from any particular provisions in the 
Constitution. It is not otherwise to be supposed that the Con- 
stitution could intend to enable the representatives of the people 
to substitute their will to that of their constituents. It is far more 
rational to suppose that the courts were designed to be an inter- 
mediate body between the people and the legislature, in order, 
among other things, to keep the latter within the limits assigned 
to their authority. The interpretation of the laws is the proper 
and peculiar province of the courts. A Constitution is in fact, 
and must be regarded by the judges as a fundamental law. It 
therefore belongs to them to ascertain its meaning, as well as the 
meaning of any particular act proceeding from the legislative 
body. If there should happen to be an irreconcilable variance 
between the two, that which has the superior obligation and valid- 
ity ought, of course, to be preferred; or, in other words, the Con- 
stitution ought to be preferred to the statute, the intention of 
the people to the intention of their agents. 

Nor does this conclusion, by any means, suppose a superiority 
of the judicial to the legislative power. It only supposes that the 
power of the people is superior to both, and that where the will 
of the legislature, declared in its statutes, stands in opposition to 
that of the people, declared in the Constitution, the judges ought 
to be governed by the latter rather than the former. They ought 
to regulate their decisions by the fundamental laws rather than 
by those which are not fundamental. 



IMPEACHMENT OF PRESIDENT JOHNSON 441 

Again : 

If, then, the courts of justice are to be considered as the bul- 
warks of a limited Constitution against legislative encroachments, 
this consideration will afford a strong argument for the permanent 
tenure of judicial offices, since nothing will contribute so much 
as this to that independent spirit in the judges, which must be 
essential to the faithful performance of so arduous a duty, {Ibid., 
544.) 

In the case of Marbury vs. Madison (1 Cranch, pp. 175, 
178), the Supreme Court of the United States, speaking 
through the great Chief Justice Marshall, said: 

The question whether an act repugnant to the Constitution 
can become the law of the land is a question deeply interesting to 
the United States; but happily not of an intricacy proportioned to 
its interests. It seems only necessary to recognize certain prin- 
ciples, supposed to have been long and well established, to decide it. 

That the people have an original right to establish for their 
future government such principles as, in their opinion, shall most 
conduce to their own happiness, is the basis on which the whole 
American fabric has been erected. The exercise of this original 
right is a very great exertion; nor can it, nor ought it, to be fre- 
quently repeated. The principles, therefore, so established are 
deemed fundamental, and as the authority from which they pro- 
ceed is supreme and can seldom act, they are designed to be per- 
manent. 

This original and supreme will organizes the Government and 
assigns to different departments their respective powers. It 
may either stop here or establish certain limits not to be trans- 
cended by those departments. 

The Government of the United States is of the latter description. 
The powers of the legislature are defined and limited, and that 
those limits may not be mistaken or forgotten the Constitution is 
written. To what purpose are powers limited, and to what pur- 
pose is that limitation committed to writing, if these limits may 
at any time be passed by those intended to be restrained? The 
distinction between a government with limited and unlimited 



442 SPEECHES OF WILLIAM MAXWELL EVARTS 

powers is abolished if those limits do not confine the persons on 
whom they are imposed, and if acts prohibited and acts allowed are 
of equal obligation. It is a proposition too plain to be contested 
that the Constitution controls any legislative act repugnant to it, 
or that the legislature may alter the Constitution by an ordinary 
act. 

Between these alternatives there is no middle ground. The 
Constitution is either a superior, paramount law, unchangeable 
by ordinary means, or it is on a level with ordinary legislative acts, 
and, like other acts, is alterable when the legislature shall please 
to alter it. 

If the former part of the alternative be true, then a legislative 
act contrary to the Constitution is not law; if the latter part be 
true, then written constitutions are absurd attempts on the part 
of the people to limit a power in its own nature illimitable. 

Certainly all those who have framed written constitutions con- 
template them as forming the fundamental and paramount law of 
the nation, and, consequently, the theory of every such govern- 
ment must be that an act of the legislature, repugnant to the 
Constitution, is void. 

This theory is essentially attached to a written constitution, 
and is, consequently, to be considered by the Court as one of the 
fundamental principles of our society. It is not, therefore, to be 
lost sight of in the further consideration of this subject. 

If an act of the legislature repugnant to the Constitution is 
void, does it, notwithstanding its invalidity, bind the Courts and 
oblige them to give it effect? Or, in other words, though it be 
not law does it constitute a rule as operative as if it was a law? 
This would be to overthrow in fact what was established in theory, 
and would seem, at first view, an absurdity too gross to be insisted 
on. It shall, however, receive a more attentive consideration. 

It is emphatically the province and duty of the judicial depart- 
ment to say what the law is. Those who apply the rule to particu- 
lar cases must, of necessity, expound and interpret that rule. If 
two laws conflict with each other, the Courts must decide on the 
operation of each. 

So, if a law be in opposition to the Constitution, if both the law 
and the Constitution apply to a particular case, so that the court 



IMPEACHMENT OF PRESIDENT JOHNSON 443 

must either decide that case conformably to the law, disregarding 
the Constitution, or conformably to the Constitution, disregarding 
the law, the Court must determine which of these conflicting 
rules governs the case. This is of the very essence of judicial duty. 

If, then, the Courts are to regard the Constitution — and the 
Constitution is superior to any ordinary act of the legislature — 
the Constitution, and not such ordinary act, must govern the case 
to which they both apply. 

Those, then, who controvert the principle that the Constitution 
is to be considered in Court as a paramount law, are reduced to the 
necessity of maintaining that Courts must close their eyes on the 
Constitution and see only the law. 

This doctrine would subvert the very foundation of all written 
constitutions. It would declare that an act wliich, according to 
the principles and theory of our Government, is entirely void, is 
yet, in practice, completely obligatory. It would declare that if 
the legislature shall do what is expressly forbidden, such act, 
notwithstanding the express prohibition, is in reality effectual. 
It would be giving to the legislature a practical and real omnipo- 
tence with the same breath which professes to restrict their powers 
within narrow limits. It is prescribing limits, and declaring that 
those limits may be passed at pleasure. 

That it thus reduces to nothing what we have deemed the great- 
est improvement on political institutions — a written constitution — 
would of itself be sufficient in America, where written constitutions 
have been viewed with so much reverence for rejecting the construc- 
tion. 

Undoubtedly it is a question of very grave consideration 
how far the different departments of the Government, legis- 
lative, judicial, and executive, are at liberty to act in 
reference to unconstitutional laws. The judicial duty, per- 
haps, may be plain. They wait for a case; they volunteer no 
advice; they exercise no supervision. But as between the 
legislature and the Executive, even when the Supreme 
Court has passed upon the question, it is one of the gravest 
constitutional points for public men to determine when and 
how the legislature may raise the question again by passing 



444 SPEECHES OF WILLIAM MAXWELL EVARTS 

a law against the decision of the Supreme Court, and the 
Executive may raise the question again by undertaking an 
executive duty under the Constitution against the decision 
of the Supreme Court and against the determination of 
Congress. We in this case have been accused of insisting 
upon extravagant pretensions. We have never suggested 
anything further than this, for the case only requires it, 
that whatever may be the doubtful or debatable region of 
the co-ordinate authority of the different departments of 
Government to judge for themselves of the constitutionality 
or unconstitutionality of laws, to raise the question anew in 
their authentic and responsible public action, when the 
President of the United States, in common with the humblest 
citizen, finds a law passed over his right, and binding upon his 
action in the matter of his right, then all reasons of duty to 
self, to the public, to the Constitution, to the laws, require 
that the matter should be put in the train of judicial 
decision, in order that the light of the serene reason of the 
Supreme Court may be shed upon it, to the end that Con- 
gress even may reconsider its action and retract its encroach- 
ment upon the Constitution. 

But Senators will not have forgotten that General Jackson, 
in his celebrated controversy with the whig party, claimed 
that no department of the Government should receive its 
final and necessary and perpetual exclusion and conclusion 
on a constitutional question from the judgment even of the 
Supreme Court, and that under the obligations of each one's 
oath, yours as Senators, yours as Representatives, and the 
President's as Chief Executive, each must act in a new 
juncture and in reference to a new matter arising to raise 
again the question of constitutional authority. Now, let 
me read in a form which I have ready for quotation a short 
passage on which General Jackson in his protest sets this 
forth. I read from a debate on the fugitive slave law as con- 
ducted in this body in the year 1852, when the honorable 



IMPEACHMENT OF PRESIDENT JOHNSON 445 

Senator from Massachusetts [Mr. Sumner] was the spokes- 
man and champion of the right for every department of the 
Government to judge the constitutionahty of law and of 
duty: 

But whatever may be the influence of this judgment — 

That is, the judgment of the Supreme Court of the United 
States in the case of Prigg vs. Pennsylvania — 

But whatever may be the influence of this judgment as a rule 
to the judiciary, it cannot arrest our duty as legislators. And here 
I adopt, with entire assent, the language of President Jackson, in 
his memorable veto, in 1832, of the Bank of the United States. 
To his course was opposed the authority of the Supreme Court, 
and this is his reply: 

"If the opinion of the Supreme Court covers the whole ground 
of this act it ought not to control the co-ordinate authorities of 
this Government. The Congress, the Executive, and the Court 
must each for itself be guided by its own opinion of the Constitution. 
Each public officer who takes an oath to support the Constitution 
swears that he will support it as he understands it, and not as it is 
understood by others. It is as much the duty of the House of 
Representatives, of the Senate, and of the President, to decide 
upon the constitutionality of any bill or resolution which may be 
presented to them for passage or approval as it is of the supreme 
judges when it may be brought before them for judicial decision. 
The authority of the Supreme Court must not, therefore, be 
permitted to control the Congress or the Executive when acting 
in their legislative capacities, but to have only such influence as 
the force of their reasoning may deserve." 

With these authoritative words of Andrew Jackson I dismiss 
this topic. (Appendix to Congressional Globe, Thirty-second Con- 
gress, first session, p. 1108.) 

"Times change and we change with them." Nevertheless, 
principles remain, duties remain, the powers of Government 
remain, their co-ordination remains, the conscience of men 
remains, and everybody that has taken an oath, and every- 



446 SPEECHES OF WILLIAM MAXWELL EVARTS 

body that is subject to the Constitution without taking an 
oath, by peaceful means has a right to revere the Constitu- 
tion in derogation of unconstitutional laws; and any leg- 
islative will or any judicial authority that shall deny the 
supremacy of the Constitution in its power to protect men 
who thus conscientiously, thus peacefully raise questions 
for determination in a conflict between the Constitution and 
the law, will not be consistent with written constitutions 
or with the maintenance of the liberties of this people as 
established by and dependent upon the preservation of 
written constitutions. 

Now let us see whether upon every ethical, constitutional, 
and legal rule the President of the United States was not the 
person upon whom this civil-tenure act operated, not as an 
executive officer to carry out the law, but as one of the co- 
ordinate departments of the government over whom in that 
official relation the authority of the act was sought to be 
asserted. The language is general: "Every removal from 
office contrary to the provisions of this act shall be a high 
misdemeanor." Who could remove from office but the 
President of the United States? Who had the authority? 
Who could be governed by the law but he? And it was in 
an official constitutional duty, not a personal right, not a 
matter of personal value or choice or interest with him. 

When, therefore, it is said and claimed that by force of a 
legislative enactment the President of the United States 
should not remove from office, whether the act of Congress 
was constitutional or not, that he was absolutely prohibited 
from removing from office, and if he did remove from office, 
although the Constitution allowed him to remove, yet the 
Constitution could not protect him for removing, but that 
the act of Congress, seizing upon him, could draw him in 
here by impeachment and subject him to judgment for vio- 
lating the law, though maintaining the Constitution, and 
that the Constitution pronounced sentence of condemnation 



IMPEACIBIENT OF PRESIDENT JOHNSON 447 

and infamy upon him for having worshiped its authority 
and sought to maintain it, and that the authority of Congress 
has that power and extent practically, j'ou tear asunder 
your Constitution, and (if on these grounds you dismiss 
this President from this Court convicted and deposed) you 
dismiss him the victim of the Congress and the martyr of 
the Constitution by the very terms of your judgment, and 
you throw open for the masters of us all in the great debates 
of an intelligent, instructed, populous, patriotic nation of 
freemen the division of sentiment to shake this country to 
its centre, "the omnipotence of Congress" as the rallying 
cry on one side, and "the supremacy of the Constitution" 
on the other. 

There is but one other topic that I need to insist upon here 
as bearing upon that part of my argument which is intended 
to exhibit to the clear apprehension, and I hope adoption, 
of this court, the view that all here that possesses weight 
and dignity, that really presents the agitating contest which 
has been proceeding between the departments of our Govern- 
ment, is political and not criminal, or suitable for judicial 
cognizance; and that is what seems to me the decisive test 
in your judgments and in your consciences; and that is 
the attitude that every one of you already in your public 
action occupies toward this subject. 

The Constitution of the United States never intended 
so to coerce and constrain the consciences and the duties 
of men as to bring them into the position of judges between 
themselves and another branch of government in regard to 
matters of difference between themselves and that other 
branch of Government in matters which concerned wholly 
the partition of authority under the Constitution between 
themselves and that other department of the Government. 
The eternal principles of justice are implied in the constitu- 
tion of every court, and there are no more immutable, no 
more inevitable principles than these, that no man shall be a 



448 SPEECHES OF WILLIAM MAXWELL EVARTS 

judge in his own cause, and that no man shall be a judge in a 
matter in which he has already given judgment. It is 
abhorrent to the natural sense of justice that men should 
judge in their own cause. It is inconsistent with nature it- 
self that man should assume an oath and hope to perform 
it by being impartial in his judgment when he has already 
formed it. The crimes that a President may have imputed 
to him that may bring him into judgment of the Senate are 
crimes against the Constitution or the laws involving turpi- 
tude or personal delinquency. 

They are crimes in which it is inadmissible to imagine 
that the Senate should be committed as parties at all. 
They are crimes which, however much the necessary reflec- 
tion of political opinions may bias the personal judgment of 
this or that member, or all the members of the body — an 
infirmity in the Court which cannot be avoided — yet it must 
be ppssible only that they should give a color or a turn and 
not be themselves the very basis and substance of the judg- 
ment to be rendered. When, therefore, I show you as from 
the records of the Senate that you yourselves have voted 
upon this law whose constitutionality is to be determined, 
and that the question of guilt or innocence arises upon con- 
stitutionality or judgment of constitutionality, when you 
have in your capacity of a Senate undertaken after the 
alleged crime committed, as an act suitable in your judgment 
to be performed by you in your relation to the executive 
authority and your duty under this Government to pro- 
nounce, as you did by resolution, that the removal of Mr. 
Stanton and the appointment of General Thomas were not 
authorized by the Constitution and the laws, you either 
did or did not regard that as a matter of political action; 
and if you regarded it as a matter of political action, then 
you regarded it as a matter that could not possibly be 
brought before you in your judicial capacity for you to de- 
termine upon any personal consequences to the Executive. 



IMPEACHMENT OF PRESIDENT JOHNSON 449 

How was it a matter for political action unless it was a mat- 
ter of his political action and the controversy was wholly 
of a political nature? If you, on the other hand, had in your 
minds the possibility of this extraordinary jurisdiction being 
brought into play by a complaint to be moved by the House 
of Representatives before you, what an extraordinary spec- 
tacle do you present to yourselves and to the country! No; 
the controlling, the necessary feeling upon which you acted 
must have been that " it is a stage and a step in governmental 
action concerning which we give this admonition and this 
suggestion and this reproof." 

In 1834, when the Senate of the United States was debat- 
ing the question of the resolution condemnatory of General 
Jackson's proceedings in reference to the deposits and Mr. 
Duane, the question was raised, "Can you, will you, should 
you pronounce opinion upon a matter of this kind when 
possibly it may be made the occasion, if your views are right, 
of an impeachment and of a necessary trial?" The answer 
of the great and trusted statesman of the Whig party of that 
day was, "If there was in the atmosphere a whisper, if there 
was in the future a menace, if there was a hope or a fear, 
accordingly as we may think or feel, that impeachment was 
to come, debate must be silenced and the resolution sup- 
pressed." But they recognized the fact that it was mere 
political action that was being resorted to, and all that was 
or was to be possible; but the complexion of the House, and 
the sentiment of the House, and the attitude of the Senate as 
claiming it only to be matter of political discussion and 
determination, absolutely rejected the notion of impeach- 
ment, as within the range of discussion and held, there- 
fore, the debate, a mere political debate and the conclusion 
a political conclusion. 

There is but one proposition that consists with the truth 
of the case and with the situation of you, Senators, here, and 
that is that you regarded this as political action and polit- 

31 



450 SPEECHES OF WILLIAM ]\L\XWELL EVARTS 

ical decision, not by possibility a matter of judgment on a 
subject to be introduced for judicial consideration. It is 
not true that that resolution purports to cover justifiable 
guilt; it only expresses an opinion that the state of the law 
and the authority of the Constitution did not justify the 
action of the President, but it does not impute violence or 
design or wickedness of purpose, or other than a justifiable 
difference of opinion to resort to an arbiter between you. 
But, even in that limited view, I take it no senator can think 
or feel that, as a preliminary part of the judgment of a court 
that was to end in acquittal or conviction, this proceeding 
could be for a moment warranted. 

The two gravest articles of impeachment against the 
weightiest trial ever introduced into this court, those on 
which as large a vote of condemnation was gained as upon 
any others, were the two articles against Judge Chase, one 
of which brought him in question for coming to the trial 
of Fries, in Pennsylvania, with a formed and pronounced 
opinion; and another, the third, was for allowing a juryman 
to enter the box on the trial of Callender, at Richmond, 
who stated that he had formed an opinion. 

I would like to see a court of impeachment that regards 
this as great matter that a judge should come to a trial and 
pronounce a condemnation of the prisoner before the coun- 
sel are heard, and should allow a juryman to enter the box 
who excused himself from having a free mind on the point 
discussed as he had formed an opinion, and yet that should 
tell us that you, having formed and expressed an opinion, 
are to sit here judges on such a matter as this. What is 
there but an answer of this kind necessary .^^ The Constitu- 
tion never brings a Senate into an inculpation and a condem- 
nation of a President upon matters in which and of which 
the two departments of the government in their political 
capacities have formed and expressed political opinions. 
It is of other matter and of other fault, in which there are 



IMPEACHMENT OF PRESIDENT JOHNSON 451 

no parties and no discriminations of opinion. It is of offence, 
of crime, in which the common rules held by all of duty, of 
obligation, of excess, or of sin, are not determinable upon 
political opinions formed and expressed in debate. 

But the other principle is equallj^ contravened, and this 
aids my argument that it is political and not personal or 
criminal; it is that you are to pass judgment of and concern- 
ing the question of the partition of the offices of this govern- 
ment between the President and yourselves. The very 
matter of his fault is that he claims them; the very matter 
of his condemnation is that you have a right to them; and 
you, aided by the list furnished by the managers, of forty- 
one thousand in number and $21,000,000 of annual emolu- 
ment, are to sit here as judges whether his mistaken claim and 
his appeal to a common arbiter in a matter of this kind is to be 
imputed to him as personal guilt and followed by personal 
punishment. 

How would any of us like to be tried before a judge who, 
if he condemned us, would have our houses, and if he ac- 
quitted us we should have his.^ So sensitive is the natural 
sense of justice on this point that the whole country was in 
a blaze by a provision in the fugitive slave law that a com- 
missioner should have but five dollars if he set the slave 
free, and ten dollars if he remanded him. Have honorable 
judges of this court forgotten that crisis of the public mind 
as to allowing a judge to have an interest in the subject of 
his judgment.'' Have they forgotten that the honorable 
senator from Massachusetts in the debate upon this tenure- 
of-office act thought that political bias might affect a court 
so that it might give judgment of but nominal punishment 
for an infraction of the act.'^ And yet you are full of politics. 
Why.'^ Because the question is political; and the whole 
point of my reference is as an absolute demonstration that 
the Constitution of the United States never forces honorable 
men into a position where they are judges in their own 



452 SPEECHES OF WILLIAM MAXWELL EVARTS 

cause, or where they have in the course of their previous 
duties expressed a judgment. 

I have omitted from this consideration the fact that the 
great office itself, if by your judgment it shall be taken from 
the elected head of this republic, is to be put in commission 
with a member of your own body chosen to-day, and to- 
morrow, at any time, by yourselves, and that you are taking 
the crown of the people's magistracy and of the people's 
glory to decorate the honor of the Senate. An officer who, 
by virtue of your favor, holds the place of President pro 
tempore of your body adds the Presidency to its duties by 
the way; and an officer changeable from day to day by you 
as you choose to have a new President pro tempore, who by 
the same title takes from day to day the discharge of the 
duties of President of the United States. 

When the prize is that, and when the circumstances are as 
I have stated, Senators must decline a jurisdiction upon this 
demonstration that human nature and human virtue can- 
not endure that men should be judges in such a strife. I 
will agree your duty keeps you here. You have no right 
to resign or avoid it; but it is a duty consistent with judicial 
fairness, and only to be assumed as such; and the subject 
itself, thus illustrated, snatches from you at once, as whollj^ 
political, the topics that you have been asked to examine. 

It will suit my convenience and sense of the better con- 
sideration of the separate articles of impeachment to treat 
them at first somewhat generally, and then, by such distri- 
bution as seems most to bring us finally to what, if it shall 
not before that time have disappeared, appears to be the 
gravest matter of consideration. 

Let me ask you at the outset to see how little as matter of 
evidence this case is. Certainly this President of the 
United States has been placed under as trying and as hot a 
gaze of political opposition as ever a man was or could be. 
Certainly for two years there has been no partial construe- 



IMPEACHMENT OF PRESIDENT JOHNSON 453 

tion of his conduct. Certainly for two years he has been 
sifted as wheat by one of the most powerful winnowing 
machines that I have ever heard of — the House of Repre- 
sentatives of the United States of America. Certainly the 
wealth of the nation, certainly the urgency of party, cer- 
tainly the zeal of political ambition, have pressed into the 
service of imputation, of inculpation, and of proof all that 
this country affords, all that the power "to send for persons 
and papers " includes. 

They have none of the risks that attend ordinary litigants 
of bringing their witnesses in court to stand the test of open 
examination and cross-examination; but they can put them 
under the constriction of an oath and an exploration in 
advance and see what they can prove, and so determine 
whom they will bring and whom they will reject. They 
can take our witness from the stand already under oath, 
and even of so great and high a character as the Lieutenant 
General of your armies, and out of court ply him with a new 
oath and a new examination to see whether he will help or 
hurt them by being cross-examined in court. Every arm 
and every heart is at their service, stayed by no sense except 
of public duty to unnerve their power or control its exercise. 

And yet here is the evidence. The people of this country 
have been made to believe that all sorts of personal vice 
and wickedness, that all sorts of official misconduct and 
folly, that all sorts of usurpation and oppression, practiced, 
meditated, plotted, and executed on the part of this Execu- 
tive, were to be explored and exposed by the prosecution 
and certainly set down in the record of this court for the 
public judgment. Here you have for violence, oppression, 
and usm-pation, a telegram between the President and Gov- 
ernor Parsons, long public, two years ago. You have for 
his desire to suppress the power of Congress the testimony 
of Wood, the office-seeker, that when the President said 
he thought the points were important he said that he thought 



454 SPEECHES OF WILLIAM MAXWELL EVARTS 

they were minor, and that he was willing to take an office 
from the President and yet uphold Congress; that the 
President said they were important, and he thought the 
patronage of the government should be in support of those 
principles which he maintained, and Wood, the office- 
seeker, went home and was supposed to have said that the 
President had used some very violent and offensive words 
on the subject, and he was brought here to prove Ihem, 
and he disproved them. 

Now, weigh the testimony upon the scale that a nation 
looks at it, upon the scale that foreign nations look at it, 
upon the scale that history will apply to it, upon the scale 
that posterity will in retrospect regard it. It depends a 
good deal upon how large a selection a few specimens of 
testimony could offer. If I bring a handful of wheat marked 
by rust and weevil, and show it to my neighbor, he will say, 
"Why, what a wretched crop of wheat you have had"; but 
if I tell him "these few kernels are what I have taken from 
the bins of my whole harvest," he will answer, "What a 
splendid crop of wheat you have had." And now answer, 
answer if there is anything wrong in this. Mr. Manager 
Wilson, from the Judiciary Committee, that had examined 
for more than a year this subject, made a report to the 
House. It is the wisest, the clearest, and also one of the most 
entertaining views of the whole subject of impeachment 
in the past and in the present that I have ever seen or can 
ever expect to see, and what is the result.? That it is all 
political. All these thunder-clouds are political, and it is 
only this little petty pattering of rain and these infractions 
of statutes that are personal or criminal. And "the grand 
inquest of the nation" summoned to the final determination 
upon the whole array, on the 9th of December, 1867, votes 
107 to 57, "no impeachment." If these honorable managers 
had limited their addresses to this court to matters that in 
purpose, in character, in intent, and in guilt, occurred after 



IMPEACHMENT OF PRESIDENT JOHNSON 455 

that bill of impeachment was thrown out by their house, 
how much you would have been entertained in this cause! 
I have not heard anything that had not occurred before that. 
The speeches were made eighteen months before. The 
telegram occurred a year before. Wood, the office-seeker, 
came into play long before. What is there, then, not cov- 
ered by this view.'* 

The honorable managers, too, do not draw together 
always about these articles. There seems to have been 
an original production, and then a sort of afterbirth that 
is added to the compilation, and as I understand the open- 
ing manager [Mr. Butler], if there is not anything in the 
first article you need not trouble yourself to think there is 
anything in the eleventh; and Mr. Manager Stevens thinks 
that if there is not anything in the eleventh you had better 
not bother yourself in looking for anything in the first ten, 
for he says a county-court lawy^er, I think, could get rid of 
them. Let me give you his exact words : 

I wish this to be particularly noticed, for I intend to offer it as 
an amendment. I wish, gentlemen, to examine and see that this 
charge is nowhere contained in any of the articles reported, and 
imless it be inserted there can be no trial upon it; and if there be 
the shrewd lawyers, as I know there will be, and cavilling judges — 

He did not state that he felt sure of that — 

and without this article they do not acquit him, they are greener 
than I was in any case I ever undertook before the court of quarter 
sessions. 

It will not be too vain in us to think that we come up 
perhaps to this estimate on our side, and at this table, of 
these quarter-session lawyers that would be adequate to dis- 
pose of these articles of impeachment; and they are right 
about it, quite right about it. If you cannot get in what is 
political and nothing but political, you cannot get hold of 
anything that is criminal or personal. 



456 SPEECHES OF WILLIAM MAXWELL EVARTS 

Now, with that general estimate of the Hmit and feeble- 
ness of the proofs and of the charges, I begin with the con- 
sideration of an article in regard to which, and the subject- 
matter of which, I am disposed to concede more than I 
imagine can be claimed fairly in regard to the other articles, 
that some proof to the point of demonstration has been 
presented, and that is the speeches. I think that it has been 
fairly proved here that the speeches charged upon the 
President, in substance and in general, were made. My 
first difficulty about them is that they were made in 1866, 
and related to a Congress that has passed out of existence, 
and were a subject in the report of the Judiciary Committee 
to the House, upon which the House voted that they would 
not impeach. My next is that they are crimes against 
rhetoric, against oratory, against taste, and perhaps against 
logic, but that the Constitution of the United States neither 
in itself nor by any subsequent amendments has provided 
for the government of the people of this country in these 
regards. It is a novelty in this country to try anybody 
for making a speech. 

There are a great many speeches made in this country, 
and therefore the case undoubtedly would have arisen in the 
course of eighty years of our Government. Indeed, I believe 
if there is anything that marks us, and to the approval, at 
least in ability, of other nations, it is that any man in this 
country not only has a right to make a speech, but can make 
a speech and a good one, and that he does some time or 
other in his life actually accomplish it. Why, the very 
lowest epithet for speech-making in the American public 
adopted by the newspapers is "able and eloquent." I 
have seen applied to the efforts of the honorable managers 
here the epithet, in advance in the newspapers, of "tre- 
mendous" before they have been delivered here, of "tremen- 
dous force"; and I saw once an accurate arithmetical 
statement of the force of one of them in advance that it con- 
tained thirty-three thousand words. 



IMPEACHMENT OF PRESIDENT JOHNSON 457 

We are speech-makers ; therefore the case must have arisen 
for a question of propriety; and now for the first time we 
begin with the President, and accuse him; we take him 
before no ordinary court, but organize a court for the pur- 
pose, which adjourns the moment it is over with him, fur- 
nishes no precedent, and must remove him from office and 
order a new election. That is a great deal to turn on a 
speech. Only think of it! To be able to make a speech 
that should require a new election of a President to be held! 
Well, if the trial is to take place, let the proclamation issue 
to this speech-making people, "let him that is without sin 
among you cast the first stone"; and see how the nation on 
tiptoe waits; but who will answer that dainty challenge and 
who assume that fastidious duty.^* We see in advance the 
necessary requirements. It must be one who by long disci- 
pline has learned always to speak within bounds, one whose 
lips would stammer at an imputation, whose cheek would 
blush at a reproach, whose ears would tingle at an invective 
and whose eyes would close at an indecorum. It must be 
one who by strict continence of speech and by control over 
the tongue, that unruly member, has gained with all his 
countrymen the praise of ruling his own spirit, which is 
greater than one who taketh a city. 

And now the challenge is answered; and it seems that the 
honorable manager to whom this duty is assigned is one who 
would be recognized at once in the judgment of all as first 
in war, first in peace in boldness of words, first in the hearts 
of all his countrymen that love this wordy intrepidity. 
Now, the champion being gained, we ask for the rule, and 
in answer to an interlocutory inquiry which I had the 
honor to address to him, he said the rule was the opinion of 
the Court that was to try the case. 

Now, let us see whether we can get any guidance as to 
what your opinions are on this subject of freedom of speech ; 
for we are brought down to that, having no law or precedent 



458 SPEECHES OF ^MLLIAM MAX^^'ELL EVARTS 

besides. I find that the matter of charge against the 
President is that he has been "unmindful of the harmony 
and courtesies which ought to exist and be maintained be- 
tween the executive and legislative branches of the govern- 
ment." If it prevails from the executive toward the legis- 
lative, it should prevail from the legislative toward the execu- 
tive, upon the same standard, unless I am to be met with 
what I must regard as a most novel view presented by Mr. 
Manager Williams in his argument the other day, that 
as the Constitution of the United States prevents your 
being drawn in question anywhere for what you say, there- 
fore it is a rule that does not work both ways. Well, 
that is a remarkable view of personal duty, that if I wore 
an impenetrable shirt of mail, it is just the thing for me 
to be drawing daggers against everybody else that is met in 
the street. "Noblesse oblige'' seems to be a law which the 
honorable manager does not think applicable to the houses 
of Congress. If there be anything in that suggestion, how 
should it guard, reduce, and regulate your use of freedom of 
speech.^ I have not gone outside of the debates that relate 
to this civil-tenure act; my time has been sufficiently occu- 
pied in reading all that was said in both houses on that 
subject; but I find now a well-recorded precedent not merely 
in the observations of a single Senator, but in a direct deter- 
mination of the Senate itself passing upon the question what 
certain bounds at least of freedom of speech as between the 
two departments of the Government permitted. The hon- 
orable senator from Massachusetts, in the course of the 
debate, using this form of expression in regard to the Presi- 
dent said, and on the subject of this very law: 

You may ask protection, against whom? I answer plainly, 
protection against the President of the United States. There, 
sir, is the duty of the hour. Ponder it well, and do not forget it. 
There was no such duty on our fathers; there was no such duty on 
our recent predecessors in this chamber, because there was no 



IMPEACHMENT OF PRESIDENT JOHNSON 459 

President of the United States who had become the enemy of his 
country. (Congressional Globe, 2d sess. 39th Congress, p. 5'i5.) 

The President had said that Congress was "hanging on 
the verge of the government"; but here is a direct charge 
that the President of the United States is an enemv of the 
country. Mr. Sumner being called to order for this expres- 
sion, the honorable Senator from Rhode Island [Mr. An- 
thony], who not unfrequently presides with so much ur- 
banity and so much control over your deliberations, gave 
this aid to us as to what the common law of this tribunal 
was on the subject of the harmonies and courtesies that 
should prevail between the legislative and the executive 
departments. He said: 

It is the impression of the Chair that those words do not exceed 
the usual latitude of debate which has been permitted here. 

Is not that a good authority, the custom of the tribunal 
established by the presiding officer.'' Mr. Sherman, the 
honorable Senator from Ohio, said: 

I think the words objected to are clearly in order. I have heard 
similar remarks fifty times without any question of order being 
raised. 

Commimis error facit jus. That is the principle of this 
view; and the Senate came to a vote, the opposing numbers 
of which remind me of some of the votes on evidence that 
we have had in this trial; the appeal was laid on the table 
by 29 yeas to 10 nays. 

We shall get off pretty easy from a tribunal whose "usual 
latitude of debate" permits the legislative branch to call 
the Executive an enemy of his country. But that is not all. 
Proceeding in the same debate, after being allowed to be in 
order, Mr. Sumner goes on with a speech, the eloquence of 
which I cannot be permitted to compliment, as it is out of 
place, but certainly it is of the highest order, and of course 



460 SPEECHES OF WILLIAM MAXWELL EVARTS 

I make no criticism upon it ; but he begins with an announce- 
ment of a very good principle : 

Meanwhile I shall insist always upon complete freedom of de- 
bate, and I shall exercise it, John Milton, in his glorious aspira- 
tions, said "Give me the liberty to know, to utter, and to argue 
freely, above all liberties." Thank God, now that slave-masters 
have been driven from this chamber, such is the liberty of an 
American Senator ! Of course there can be no citizen of a republic 
too high for exposure, as there can be none too low for protection. 
The exposure of the powerful and the protection of the weak — 
these are not only invaluable liberties but commanding duties. 

Is there anything in the President's answer that is nobler 
or more thoroughgoing than that.^^ And if the President is 
not too high, but that it should be not only an invaluable 
liberty but a commanding duty to call him an enemy of 
the country, may not the House of Representatives be ex- 
posed to an imputation of a most unintelligible aspersion 
upon them that they "hang on the verge of the government"? 
Then the honorable Senator proceeds with a style of obser- 
vation upon which I shall make no observation whatever, 
and I feel none, but Cicero, in In Catalinam, In Verrem, and 
in Pro Milone, does not contain more eloquence against the 
objects of his invective than this speech of the honorable 
Senator. Here are his words: 

At last the country is opening its eyes to the actual condition 
of things. Already it sees that Andrew Johnson who came to 
supreme power by a bloody accident, has become the successor 
of Jefferson Davis in the spirit by which he is governed and in the 
mischief he is inflicting on his country. It sees the president 
of the rebellion revived in the President of the United States. It 
sees that the violence which took the life of his illustrious prede- 
cessor is now by his perverse complicity .extending throughout the 
rebel States, making all who love the Union its victims and filling 
the land with tragedy. It sees that the war upon the faithful 
Unionists is still continued under his powerful auspices, without 



IMPEACHMENT OF PRESIDENT JOHNSON 461 

any distinction of color, so that all, both white and black, are sac- 
rificed. It sees that he is the minister of discord, and not the 
minister of peace. It sees that, so long as his influence prevails, 
there is small chance of tranquillity, security, or reconciliation; 
that the restoration of prosperity in the rebel States, so much 
longed for, must be arrested; that the business of the whole 
country must be embarrassed, and that those conditions on which 
a sound currency depends must be postponed. All these things 
the country now sees. But indignation assumes the form of judg- 
ment when it is seen also that this incredible, unparalleled, and 
far-reaching mischief, second only to the rebellion itself, of which 
it is a continuation, is invigorated and extended through a plain 

usurpation 

The President has usurped the powers of Congress on a colossal 
scale, and he has employed these usurped powers in fomenting the 
rebel spirit and awakening anew the dying fires of the rebellion. 
Though the head of the executive, he has rapaciously seized the 
powers of the legislative, and made himself a whole Congress, in 
defiance of a cardinal principle of republican government that each 
branch must act for itself without assuming the powers of the 
others; and in the exercise of these illegitimate powers, he has 
become a terror to the good and a support to the wicked. This is 
his great and unpardonable offence, for which history must con- 
demn him if you do not. He is a usurper, through whom infinite 
wrong has been done to his country. He is a usurper, who, 
promising to be a Moses, has become a Pharaoh. (Congressional 
Globe, 2d sess., 39th Congress, p. 541.) 

And then it all ends in a wonderfully sensible — if the 
honorable Senator will allow me to say so — and pithy obser- 
vation of the honorable Senator from Wisconsin [Mr. Howe] : 

The Senator from Massachusetts has advanced the idea that the 
President has become an enemy to his country. . . . But I 
suppose that not only to be the condition of the sentiment in this 
Senate touching the present President of the United States, but 
I suppose we never had a President who was not in communication 
with a Senate divided upon just that question, some thinking 
that he was an enemy of the country and others thinking that he 



462 SPEECHES OF WILLIAM MAXWELL EVARTS 

was not; and I respectfully submit, therefore, that the Senator 
from Massachusetts wall be competent to try an impeachment if 
it should be sent here against the President, as I conceive the Sena- 
tor from Maryland would be competent to try that question in 
spite of the opinion which he has pronounced here. {Ibid., p. 545.) 

That is good sense. Senatorial license must, if it goes so 
wide as this, sometimes with good-natured Senators be 
properly described as a little Pickwickian. 

We have also a rule provided for us in the House of 
Representatives, and I have selected a very brief one, 
because it is one that the honorable managers will not 
question at all, as it gives their standard on the subject. I 
find that there this rule of license in speech, in a very brief, 
pithy form, is thus conducted between two of the most dis- 
tinguished members of that body, who can, as well as any 
others, for the purpose of this trial, furnish a standard of 
what is called by the honorable manager "propriety of 
speech." I read from page 263 of the Congressional Globe 
for the fortieth Congress, first session: 

Mr. Bingham: I desire to say, Mr. Chairman, that it does not 
become a gentleman who recorded his vote fifty times for Jefferson 
Davis, the arch traitor in this rebellion, as his candidate for 
President of the United States, to undertake to damage this cause 
by attempting to cast an imputation either upon my integrity or 
my honor. I repel with scorn and contempt any utterance of that 
sort from any man, whether he be the hero of Fort Fisher not taken 
or of Fort Fisher taken. [Laughter.] 

Now for the reply: 

Mr. Butler: But if during the war the gentleman from Ohio 
did as much as I did in that direction I shall be glad to recognize 
that much done. But the only victim of the gentleman's prowess 
that I know of was an innocent woman hung upon the scaffold, 
one Mrs. Surra tt. And I can sustain the memory of Fort Fisher 
if he and his present associates can sustain him in shedding the 
blood of a woman tried by a military commission and convicted 
without sufficient evidence, in my judgment. 



IMPEACHIVIENT OF PRESIDENT JOHNSON 463 

To which, on page 364, Mr. Bingham responds with spirit: 

I challenge the gentleman, I dare him here or anywhere in this 
tribunal, or in any tribunal, to assert that I spoliated or mutilated 
any book. Why, sir, such a charge, without one tittle of evidence, 
is only fit to come from a man who lives in a bottle and is fed 
with a spoon. [Laughter.] 

Now, what under heaven that means I am sure I do 
not know, but it is within the common law of courtesv 
in the judgment of the House of Representatives. We 
have attempted to show that in the President's addresses 
to the populace there was something of irritation, something 
in the subjects, something in the manner of the crowd that 
excused and explained, if it did not justify, the style of his 
speech. You might suppose that this interchange in debate 
grew out of some subject that was irritating, that was itself 
savage and ferocious; but what do you think was the sub- 
ject these honorable gentlemen were debating upon.^ W'hy, 
it was charity. The question of charity to the South 
was the whole staple of the debate; "charity," which 
"suffereth long and is kind." "Charity envieth not." 
"Charity vaunteth not itself, is not puffed up." Charity 
"doth not behave itself unseemly, seeketh not her own, is 
not easily provoked, thinketh no evil, rejoiceth not in 
iniquity, but rejoiceth in the truth, beareth all things, 
belie veth all things, hopeth all things, endureth all things; 
charity never faileth." But, then, the Apostle adds, which 
I fear might not be proved here, "tongues may fail." 

Now, to be serious, in a free republic who will tolerate this 
fanfaronade about speech-making.^ '' Quis tulerit Gracchos 
de seditione querentes?" 

Who will tolerate public orators prating about propriety 
of speech? Why cannot we learn that our estimate of 
others must proceed upon general views, and not vary 
according to particular passions or antipathies.'* When 



464 SPEECHES OF \MLLIAM MAXWELL EVARTS 

Cromwell in his career through Ireland, in the name of the 
Parliament, had set himself do^Ti before the town of Ross 
and summoned it to surrender, exhausted in its resistance, 
this Papist community asked to surrender only upon the 
conditions of freedom of conscience. Cromwell replied: 
"As to freedom of conscience, I meddle with no man's 
conscience; but if you mean by that liberty to celebrate 
the mass, I would have you understand that in no place 
where the powder of the Parliament of England prevails shall 
that be permitted." So, freedom of speech the honorable 
managers in their imputation do not complain of; but if 
anybody says that the House of Representatives hangs 
upon the verge of the Government, we are to understand 
that in no place where the power of the two houses of 
Congress prevails shall that degree of liberty be enjoyed, 
though they meddle with no man's propriety or freedom of 
speech. 

Mr. Jefferson had occasion to give his views about the 
infractions upon freedom of writing that the sedition law 
introduced in the legislature of this country, and at the 
same time some opinion about the right of an Executive to 
have an opinion about the constitutionality of a law and to 
act accordingly; and I will ask your attention to brief ex- 
tracts from his views. Mr. Jefferson, in a letter to Mr. 
President Adams, written in 1804 (Jefferson's Works, vol. 3, 
p. 555), says: 

I discharged every person under the punishment or prosecution 
under the sedition law, because I considered and now consider 
that law to be a nullity as absolute and as palpable as if Congress 
had ordered us to fall down and worship a golden image, and that 
it was as much my duty to arrest its execution in every stage as it 
would have been to have rescued from the fiery furnace those who 
should have been cast into it for refusing to worship the image. 
It was accordingly done in every instance, without asking what 
the offenders had done or against whom they had offended, but 



IMPEACHMENT OF PRESIDENT JOHNSON 465 

whether the pains they were suffering were inflicted under the 
pretended sedition law. 

And in another letter he replies to some observations 
against this freedom of the Executive about the constitu- 
tionality of laws : 

You seem to think it devolved on the judges to decide on the 
validity of the sedition law; but nothing in the Constitution has 
given them a right to decide for the Executive more than for the 
Executive to decide for them. Both magistrates are equally 
independent in the sphere of action assigned to them. The judges 
believing the law constitutional, had a right to pass a sentence of 
fine and imprisonment, because the power was placed in their 
hands by the Constitution; but the Executive believing the law 
to be unconstitutional, were bound to remit the execution of it, 
because that power had been confided to them by the Constitution. 
That instrument meant that its co-ordinate branches should be 
checks on each other; but the opinion which gives the judges the 
right to decide what laws are constitutional and what not, not only 
for themselves in their own sphere of action, but for the legislature 
and Executive also in their sphere, would render the judiciary a 
despotic branch. 

We have no occasion and have not asserted the right to 
resort to these extreme opinions which it is known Jefferson 
entertained. The opinions of Madison, more temperate but 
equally thorough, were to the same effect. The co-ordinate 
branches of the Government must surrender their co-ordi- 
nation whenever they allow a past rescript to be a final 
bar to renewing or presenting constitutional questions for 
reconsideration and redetermination, if necessary, even, by 
the Supreme Court. 

But we have here some instances of the courtesy prevail- 
ing in the different branches of the Government in the very 
severe expression of opinion that Mr. Manager Boutwell 
indulged in in reference to the heads of departments. That 
is an executive branch of the Government; and here you are 

32 



466 SPEECHES OF WILLIAM IVIAXWELL EVARTS 

sitting in these halls, and the language used was as much 
severer, as much more degrading to that branch of the 
Government than anything said by the President in refer- 
ence to Congress as can be imagined. Exception here is 
taken to the fact that the President called congressmen, it 
is said, in a telegram, "a set of individuals." We have 
heard of an old lady not well instructed in long words who 
got very violent at being called an individual, because she 
supposed it was opprobrious. But here we have an impu- 
tation in so many words that the heads of departments are 
"serfs of a lord, servants of a master, slaves of an owner." 
And yet in this very presence sits the eminent Chief Justice 
of the United States, and the eminent Senator from Maine 
(Mr. Fessenden), and the distinguished Senator from Penn- 
sylvania (Mr. Cameron), all of whom have held cabinet 
offices bv this tenure, thus decried and derided; and if I were 
to name the Senators who aspire in the future to hold these 
degraded positions, I am afraid I should not leave judges 
enough here to determine this cause. All know that 
this is all extravagance. '"Est modus in rebus; sunt certi 
denique fines." 

There is some measure in things. There is some limit to 
the bounds of debate and discussion and imputation. I 
will agree that nothing could be more unfortunate than the 
language used by the President as offending the serious and 
religious tastes and feelings of a community, in the observa- 
tions which he was drawn into by a very faulty method of 
reasoning, in a speech that he made at St. Louis. The 
difficulty is, undoubtedly, that the President is not familiar 
with the graces taught at schools, the costly ornaments 
and studied contrivances of speech, but that he speaks 
right on; and when an obstacle is presented in his path he 
proceeds right over it. But here is a rhetorical difficulty for a 
man not a rhetorician. An illusive metaphorical suggestion 
has been made that he is a Judas. If anybody — I do not 



IMPEACHI^IENT OF PRESIDENT JOHNSON 467 

care how practiced he is — undertakes to become logical 
with a metaphor, he will get into trouble at once; and that 
was the President's difficulty. He looked around with the 
eye of a logician and said, " Judas's fault was the betrayal of 
all goodness. Where is the goodness that I have betrayed? " 
And the moment, therefore, that you seek to be logical by 
introducing the name of the Divinity against whom he had 
thus sinned, of course you would produce that offence and 
shock to our senses which otherwise would not have been 
occasioned. 

I am not entirely sure that when you make allowances 
for the difference between an ex tempore speech of the Presi- 
dent to a mob, and a written, prepared, and printed speech 
to this Court, by an honorable manager, but that there may 
be some little trace of the same impropriety in that figure of 
argument which presented INIr. Carpenter to your observa- 
tion as an inspired painter, whose pencil was guided by the 
hand of Providence to the apportionment of Mr. Stanton 
to perpetual bliss, and of Governor Seward to eternal pains. 
But all that is matter of taste, matter of feeling, matter of 
discretion, matter of judgment. 

The serious views impressed upon you with so much force 
by the counsel for the President who opened this cause for 
us, and supported by the quotations from Mr. Madison, 
present this whole subject in its proper aspect to an American 
audience. I think that if our newspapers would find some 
more discriminating scale of comment on speeches than to 
make the lowest scale "able and eloquent," we should 
have a better state of things in public addresses. 

Our position in regard to the speeches is, that the circum- 
stances produced in truth should be considered, that words 
put into the speaker's mouth from the calls of the crowd, 
ideas suddenly raised by their unfriendly and impolite sug- 
gestions, are to have their weight, and that without apolo- 
gizing, for no man is bound to apologize before the law or 



468 SPEECHES OF WILLIAM MAXWELL EVAKTS 

before the Court for the exercise of freedom of speech, it 
may be freely admitted that it would be very well if all men 
were accomplished rhetoricians, finished logicians, and had a 
bridle on their tongues. 

And now, without pausing at all upon the eleventh article, 
which I leave to the observations of the honorable managers 
among themselves to dispose of, I will take up the Emory 
article. The Emory article is an offence which began and 
ended on the 22d of February, and is comprised within a 
half hour's conversation between the President and a general 
of our armies. 

I dare say that in the rapid and heated course of this im- 
peachment through the House of Representatives it may 
have been supposed by rumor, uncertain and amplified, 
that there had occurred some kind of military purpose or 
intention on the part of the President that looked to the 
use of force; but under these proofs what can we say of it 
but that the President received an intimation from Secre- 
tary Welles that all the oflScers were being called away from 
what doubtless is their principal occupation in time of peace, 
attendance upon levees, were summoned, as they were from 
the halls of revelry at Brussels to the battle of Waterloo, 
and it was natural to inquire when and where this battle 
was to take place; and the President, treating it with very 
great indifference, said he did not know anything about 
General Emory, and did not seem to care anything about it; 
but finally, when Secretary Welles said, "You had better 
look into it," he did look into it, and there was a conver- 
sation which ended in a discussion of constitutional law 
between the President and the general, in which the general, 
re-enforced by Mr. Reverdy Johnson, a lawyer, and Mr. 
Robert J. Walker, a lawyer, actually put down the 
President entirely! Now, if he ought to be removed from 
office for that, and a new election ordered for that, 
you will so determine in your judgment; and if any other 



IMPEACHMENT OF PRESIDENT JOHNSON 469 

President can go through four years without doing some- 
thing worse than that, we shall have to be more careful in 
the preliminary examinations in our nominating conventions. 
I understand this article to be hardly insisted upon. 

Then come the conspiracy articles. The conspiracy con- 
sists in this : It was all commenced and completed in writing ; 
the documents were public; they were immediately promul- 
gated, and that is the conspiracy, if it be one. It is quite 
true that the honorable Manager, who conducted with so 
much force and skill the examinations of the witnesses, did 
succeed in proving that besides the written orders handed 
by the President of the United States to General Thomas, 
there were a few words of attendant conversation, and those 
words were, "I wish to uphold the Constitution and the 
laws," and an assent of General Thomas to the propriety 
of that course. But by the power of our profession the 
learned Manager made it evident, by the course of his 
examination, in which he asked the witness if he had ever 
heard those words used before when a commission was de- 
livered to him and received for reply that he had not, and 
that it was not routine, that they carried infinite gravity of 
suspicion ! 

What is there that we cannot believe in the power of coun- 
sel to affix upon innocent and apparently laudable expressions 
these infinite consequences of evil surmise, when we remem- 
ber how, in a very celebrated trial, "chops and tomato 
sauce" were to go through the service of getting a verdict 
from a jury on a question of a breach of promise of 
marriage.^^ Now, "chops and tomato sauce" do not im- 
port a promise of marriage; there is not the least savor 
of courtship nor the least flavor of flirtation, even, in 
them; but it is in "the hidden meaning." And so "the 
Constitution and the laws," by these two men, at mid- 
day, and in writing, entering into a conspiracy, mean, we 
are told, bloodshed, civil commotion, and war! Well, I 



470 SPEECHES OF ^MLLIAM MAX\\'ELL EVARTS 

cannot argue against it. Cardinal Wolsey said that in 
political times you could get a jury that would bring in a 
verdict that Abel killed Cain; and it may be that an American 
Senate will find that in this allusion to the Constitution and 
the laws is found sufficient evidence to breed from it a pur- 
pose of commotion and civil war. 

But the conspiracy articles have but a trivial foundation 
to rest upon. Here we have a statute passed at the eve of 
the insurrection intended to guard the possession of the 
offices of the United States from the intrusion of intimida- 
tion, threats, and force, to disable the public service. It is, 
in fact, a reproduction of the first section of the sedition act 
of 1798 somewhat amplified and extended. It is a law 
wholly improper in time of peace, for, in the extravagance 
of its comprehension, it may include much more than should 
be made criminal, except in times of public danger. But 
the idea that a law intended to prevent rebels at the south, 
or rebel sympathizers, as they were called, at the north, 
from intimidating officers in the discharge of their public 
duty, should be wrested to an indictment and trial of a 
President of the United States and an officer of the army 
under a written arrangement of orders to take possession 
of and administer one of the departments of the Government 
according to law, is wresting a statute wholly from its 
application. We are all familiar with the illustration that 
Blackstone gives us of the impropriety of following the lit- 
eral words of a statute as against a necessary implication, 
when he says that a statute against letting blood in the 
street could not properly support an indictment against a 
surgeon for tapping the vein of an apoplectic patient who 
happened to have fallen on the sidewalk. And there is no 
greater perversity or contrariety in this effort to make this 
statute applicable to orderly and regular proceedings between 
recognized officers of the United States in the disposition of 
an office than there would be in punishing the surgeon for 
relieving the apoplectic patient. 



IMPEACHMENT OF PRESIDENT JOHNSON 471 

I did not fully understand, though I carefully attended 
to, the point of the argument of the learned Manager [Mr. 
Boutwell], who, with great precision and detail, brought 
into view the common law of Maryland as adopted 
by Congress for the Government in the domestic and ordi- 
nary affairs of life of the people in this District; but if I did 
rightly understand it, it was that, though there was nothing 
in the penal code of the District, and although the act of 
1801 did not attempt to make a penal code for the District, 
yet somehow or other it became a misdemeanor for the 
President of the United States, in his official functions, to do 
what he did do about this office, because it was against the 
common law of Maryland as applied in this District. 

I take it that I need not proceed on this subject any 
further. The common law has a principle that when the 
common law stigmatizes a malum in se and a felony it may 
be a misdemeanor at common law to attempt it and to use 
the means. But the idea that when a statute makes malum 
prohibitum, and affixes a punishment to it if executed the 
common law adds to that statutory malum prohibitum and 
punishment a common law punishment, for attempting it, 
when the statute itself has not included an attempt within 
it, I apprehend is not supported by any authority or any 
view of the law; and I must think that it cannot be supposed 
in the high forum of a court of impeachment as making a 
high crime and misdemeanor, that the President of the 
United States, in determining what his powers and duties 
were in regard to filling offices, should have looked into the 
common law of the District of Columbia because the oflSces 
are inside of the District. 

Then, upon the views presented of the conspiracy articles, 
let us see what the evidence is. There was no preparation 
or meditation of force; there was no application of force; 
there was no threat of force authorized on the part of the 
President; and there was no expectation of force, for he 



472 SPEECHES OF WILLIAM MAX^\^LL EVARTS 

expected and desired nothing more and nothing less than 
that, by the peaceful and regular exercise of authority on his 
part, through the ordinary means of its exercise, he should 
secure obedience, and if, disappointed in that, obedience 
should not be rendered, all that the President desired or 
expected was that, upon that legal basis thus furnished by 
his official action, there should be an opportunity of taking 
the judgment of the courts of law. 

Now, there seems to be left nothing but those articles that 
relate to the ad interim appointment of General Thomas and 
to the removal of Mr. Stanton. I will consider the ad 
interim appointment first, meaning to assume, for the pur- 
pose of examining it as a possible crime, that the office had 
been vacated and was open to the action of the President. 
If the office was full, then there could be no appointment by 
the authority of the President or otherwise. The whole 
action of the President manifestly was based upon the idea 
that the office was to be vacated before an ad interim ap- 
pointment could possibly be made, or was intended to take 
effect. 

The letter of authority accompanied the order of removal 
and was, of course, secondary and ancillary to the order of 
removal, and was only to take up the duties of the office and 
discharge them if the Secretary of War should leave the office 
in need of such temporary charge. 

I think that the only circumstance we have to attend to 
before we look precisely at the law governing ad interim 
appointments is some suggestion as to any difference be- 
tween ad interim appointments during the session of the 
Senate and during the recess. The honorable Managers, 
perhaps all of them, but certainly the honorable Manager, 
Mr. Boutwell, has contended that the practice of the Govern- 
ment in regard to removals from office covered only the case 
of removals during the recess of the Senate. It will be part 
of my duty and labor when I come to consider definitely the 



IMPEACHMENT OF PRESIDENT JOHNSON 473 

question of the removal of Mr. Stanton to consider that 
point, but for the purpose of General Thomas's appointment 
no such discrimination needs to be made. The question 
about the right of the Executive to vacate an office, as to be 
discriminated between recess and session, arises out of the 
constitutional distinction that is taken, to wit: that he can 
only fill an office during session by and with the advice and 
consent of the Senate, and that he can during the recess, com- 
mission — it is not called filling the ofiice, or appointing, — 
but commission by authority, to expire with the next session. 

But ad interim appointments do not rest upon the Consti- 
tution at all. They are not regarded, they never have been 
regarded as an exercise of the appointing power in the sense 
of filling an office. Thej^ are regarded as falling within 
either the executive or legislative duty of providing for a 
management of the duties of the oflfice before an appoint- 
ment is or can properly be made. In the absence of legis- 
lation it might be said that this power belonged to the 
Executive; that a part of his duty was, when he saw that 
accident had vacated an office or that necessity had required 
a removal, under his general authority and duty to see that 
the laws are executed, he should provide that the public 
service should be temporarily taken up and carried on. I 
do not think that that is an inadmissible constitutional 
conclusion. 

But it might equally well be determined that it was a 
casus omissus, for which the Constitution had provided no 
rules and which the legislation of Congress might properly 
occupy. From the beginning, therefore, as early as 1792 and 
1789, indeed, provision is made for temporary' occupation 
of the duties of an office, and the course of legislation was 
this: the eighth section of the act of 1792, regulating three 
of the departments, provided that temporary absence and 
disabilities of the heads of departments, leaving the office 
still full, might be met by appointments of temporary per- 



474 SPEECHES OF ^\TLLIAM MAX^^TLL EVARTS 

sons to take charge. The act of 1795 provided that in case of 
a vacancy in the office there might be power in the Executive 
which would not require him to fill the office by the consti- 
tutional method but temporarily to provide for a discharge 
of its duties. Then came the act of 1863, which in terms 
covers to a certain extent but not fully both of these predica- 
ments; and I wish to ask your attention to some circum- 
stances in regard to. the passage of that act of 1863, I 
have said that the eighth section of the act of 1792 provides 
for filling temporarily, not vacancies, but disabilities. In 
January, 1863, the President sent to Congress this brief 
message, and Senators will perceive that it relates to this 
particular subject: 

To the Senate and House of Representatives: 

I submit to Congress the expediency of extending to other 
departments of the government the authority conferred on the 
President by the eighth section of the act of the 8th of May, 1792, 
to appoint a person to temporarily discharge the duties of Secre- 
tary of State, Secretary of the Treasury, and Secretary of War, in 
case of the death, absence from the seat of government, or sick- 
ness of either of those officers. 

Abraham Lincoln. 
Washington, January 2, 1863. 

That is to say, the temporary disability provision of the 
act of 1792, which covered all the departments then in exis- 
tence, had never been extended by law to cover the other 
departments, and the President desired to have that act 
extended. The act of 1795 did not need to be extended, for 
it covered "vacancies" in its terms and was applicable to 
other departments, and vacancies were not in the mind of 
the President, nor was there any need of a provision of law 
for them. This message having been referred to the Judi- 
ciary Committee, the honorable Senator from Illinois [Mr. 
Trumbull], the chairman of that committee, made a very 



IMPEACHMENT OF PRESIDENT JOHNSON 475 

brief report; I believe this is the whole of it, or rather a 
brief statement in his place concerning it, in which he said: 

There have been several statutes on the subject, and as the laws 
now exist the President of the United States has authority tempo- 
rarily to fill the office of Secretary of State and Secretary of War 
with one of the other Secretaries by calling some person to discharge 
the duties. 

The other department was the Treasury. 

We received communications from the President of the United 
States asking that the law be extended to the other executive 
departments of the government, which seems to be proper; and 
we have framed a bill to cover all of those cases, so that whenever 
there is a vacancy the President may temporarily devolve the duty 
of one of the cabinet ministers on another cabinet minister, or 
upon the chief officer in the department for the time being. 

Here there does not seem to have been brought to the 
notice in terms of the Senate or of the honorable Senator the 
act of 1795; nothing is said of it; and it would appear, 
therefore, as if the whole legislation of 1863 proceeded upon 
the proposition of extending the act of 1792 as to disabilities 
in office, not vacancies, except that the honorable Senator 
uses the phrase "vacancies," and that he speaks of having 
provided for the. occasions that might arise. The act of 
1863 does not cover the case of vacancies except by resig- 
nation, and it is not therefore, a vacancy act in full. It 
does add to the disabilities which the President had asked 
to have covered, a case of resignation which he did not ask to 
have covered, and which did not need to be covered by new 
legislation, because the act of 1795 embraced it. But this 
act of 1863 does not cover all the cases of vacancy. It does 
not cover vacancies by removal, if removal could be made and 
we supposed it could in 1863; it does not cover the case of 
expiration of office, which is a case of vacancy, provided 
there are terms to oflBce. 



476 SPEECHES OF ^VILLIAM JlIAXWELL EVARTS 

Under that additional light it seems as if the only question 
presented of guilt on the part of the President in respect 
to the appointment to office ad interim was a question of 
whether he violated a law. But Senators will remark the 
very limited form in which that question arises. It is not 
pretended that the appointment of Thomas, if the office 
was vacant, was a violation of the civil-tenure act; that is, 
it is not pretended in argument, although perhaps it may be 
so charged in the articles; because an examination of the 
act shows that the only appointments prohibited there, and 
the infringement of which is made penal, is appointing con- 
trary to the provisions of that act, as was pointed out by my 
colleague. Judge Curtis, and seems to have been assented to 
in the argument on the other side; that an appointment 
prohibited, or an attempt at an appointment prohibited, 
relates to the infraction of the policy and provisions of that 
act as applied to the attempt to fill the offices that are de- 
clared to be in abeyance under certain predicaments. I 
believe that to be a sound construction of the law, whether 
assented to or not, not to be questioned anywhere. 

Very well, then, supposing that the appointment of General 
Thomas was not according to law, it is not against any law 
that prohibits it in terms, nor against any law that has a 
penal clause or a criminal qualification upon the act. What 
would it be if attempted without authority of the act of 
1795, because that was repealed, and \vithout authority of 
the act of 1863, because General Thomas was not an 
officer that was eligible for this temporary employment? 
It would simply be that the President, in the confusion 
among these statutes, had appointed, or attempted to 
appoint, an ad interim discharge of the office without 
authority of law. You could not indict him very well for 
it, and I do not think you can impeach him for it. There 
are an abundance of mandatory laws upon the President of 
the United States, and it never has been customary to put a 
penal clause in them till the civil-tenure act of 1867. 



I^rPEACIBIENT OF PRESIDENT JOHNSON 477 

But on this subject, the ad interim appointments, there is 
no penal clause and no positive prohibition in any statute. 
There would be, then, simply a defect of authority in the 
President to make the appointment. What, then, would 
be the consequence? General Thomas might not be entitled 
to discharge the duties of the office; and if he had undertaken 
to give a certificate as Secretary ad interim to a paper that 
was to be read in evidence in a Court, and a lawyer had ob- 
jected that General Thomas was not Secretary ad interim, 
and had brought the statutes, the certificate might have 
failed. That is all that can be claimed or pretended in that 
regard. 

But we have insisted, and we do now insist, that the act of 
1795 was in force; and that whether the act of 1795 was or 
was not in force, is one of those questions of dubious inter- 
pretation of implied repeal upon which no oflicer, humble or 
high, could be brought into blame for ha\ang an opinion 
one way or the other. And if you proceed upon these 
articles to execute a sentence of removal from ofiice of a 
President of the United States, you wall proceed upon an in- 
fliction of the highest possible measure of civil condeamation 
upon him personally, and of the highest possible degree of 
interference w^th the constitutionally elected Executive 
dependent on suffrage that it is possible for a Court to inflict, 
and you will rest it on the basis either that the act of 1795 
w^as repealed, or upon the basis that there w^as not a doubt 
or difficulty or an ignorance upon which a President of the 
United States might make an ad interim appointment of 
General Thomas for a day, followed by a nomination of a 
permanent successor on the succeeding day. Truly, indeed, 
we are getting very nice in our measure and criticism of the 
absolute obligations and of the absolute acuteness and thor- 
oughness of executive functions wdien w^e seek to apply the 
process of impeachment and removal to a question w^hether 
an act of Congress required him to name a head of a depart- 



478 SPEECHES OF WTLLIAM MAXWELL EVARTS 

ment to take the vacant place ad interim or an act of Congress 
not repealed permitted him to take a suitable person. You 
certainly do not, in the ordinary affairs of life, rig a trip- 
hammer to crack a walnut. 

I think, Mr. Chief Justice, that I shall be able to conclude 
what I may have to say to the Senate further certainly 
within the compass of an hour; and as the customary hour of 
adjournment has been reached, I may, perhaps, be permitted 
to say that I feel somewhat sensibly the impression of a 
long argument. 

Fourth Day, May 1, 1868. 

Mr. Chief Justice and Senators, I cannot but feel that, 
notwithstanding the unfailing courtesy and the long-suffering 
patience which for myself and my colleagues I have every 
reason cheerfully to acknowledge on the part of the Court 
in the progress of this trial and in the long argument, you 
had at the adjournment yesterday reached somewhat of the 
condition of feeling of a very celebrated judge, Lord Ellen- 
borough, who, when a very celebrated lawyer, Mr. Fearne, 
had conducted an argument upon the interesting subject of 
contingent remainders to the ordinary hour of adjournment, 
and suggested that he would proceed whenever it should be 
his lordship's pleasure to hear him, responded, "The Court 
will hear you, sir, to-morrow; but as to pleasure, that has 
been long out of the question." 

Be that as it may, duties must be done, however arduous, 
and certainly your kindness and encouragement relieve from 
all unnecessary fatigue in the progress of the cause. We 
will look for a moment, under the light which I have sought 
to throw upon the subject, a little more particularly at the 
two acts, the one of 1795 and the other of 1863, that have 
relation to this subject of ad interim appointments. The 
act of 1795 provides: 

That in case of vacancy in the office of Secretary of State, 



IMPEACHMENT OF PRESIDENT JOHNSON 479 

Secretary of the Treasury, or of the Secretary of the Department 
of War, or of any officer of either of the said departments, whose 
appointment is in the head thereof, whereby they cannot perform 
the duties of their said respective offices, it shall be lawful for the 
President of the United States, in case he shall think it necessary, 
to authorize any person or persons, at his discretion, to perform 
the duties of the said respective offices until a successor be appointed 
or such vacancy be filled: Provided, That no one vacancy shall 
be supplied in manner aforesaid for a longer term than six months. 

The act of 1863, which was passed under a suggestion of 
the President of the United States, not for the extension of 
the vacancy act which I have read to the other departments, 
but for the extension of the temporary-disability provision 
of the act of 1792, does provide as follows: 

In case of the death, resignation, absence from the seat of 
government, or sickness of the head of any executive department 
of the Government or of any officer of either of the said depart- 
ments whose appointment is not in the head thereof, whereby 
they cannot perform the duties of their respective offices, it shall 
be lawful for the President of the United States, in case he shall 
think it necessary, to authorize — 

Not "any person or persons," as is the act of 1795, but — 

to authorize the head of any other executive department or other 
officer in either of said departments whose appointment is vested 
in the President, at his discretion, to perform the duties of the said 
respective offices until a successor be appointed, or until such 
absence or disability by sickness shall cease : Provided, That no one 
vacancy shall be supplied in manner aforesaid for a longer term 
than six months. 

It will be observed that the eighth section of the act of 
1792, to which I will now call attention, being in 1 Statutes 
at Large, page 281, provides thus: 

That in case of the death, absence from the seat of government, 
or sickness of the Secretary of State, Secretary of the Treasury, 



480 SPEECHES OF ^^^LLIAM MAXWTLL EVARTS 

or of the Secretary of the War Department, or of any officer of 
either of the said departments, whose appointment is not in the 
head thereof, whereby they cannot perform the duties of their 
respective offices, it shall be lawful for the President of the United 
States, in case he shall think it necessary, to authorize any person 
or persons, at his discretion, to perform the duties of the said 
respective offices until a successor be appointed, or until such 
absence or inability by sickness shall cease. 

I am told, or I understand from the argument, that if there 
was a vacancy in the office of Secretary of War by the com- 
petent and effective removal of Mr. Stanton by the exercise 
of the President's authority in his paper order, there has 
come to be some infraction of law by reason of the Presi- 
dent's designating General Thomas to the ad interim charge 
of the office, because it is said that though under the act of 
1795, or under the act of 1792, General Thomas, under the 
comprehension of "any person or persons," might be open 
to the presidential choice and appointment, yet that he 
does not come within the limited and restricted right of 
selection for ad interim duties which is imposed by the act 
of 1863; and it seems to have been assumed in the argument 
that the whole range of selection permitted under that act 
was of the heads of departments. But your attention is 
drawn to the fact that it permits the President to designate 
any person who is either the head of a department, or who 
holds any office in any department the appointment of which 
is from the President; and I would like to know why General 
Thomas, Adjutant General of the armies of the United 
States, holding his position in that Department of War, 
is not an officer appointed by the President, and open to his 
selection for this temporary duty; and I would like to know 
upon what principle of ordinary succession or recourse for 
the devolution of the principal duty any officer could stand 
better suited to assume for a day or for a week the discharge 
of the ad interim trust than the Adjutant General of the 



IMPEACHMENT OF PRESIDENT JOHNSON 481 

armies of the United States, being the staff officer of the 
President, and the person who stands there as the principal 
director and immediate agent of the War Department in 
the exercise of its ordinary functions? 

I cannot but think it is too absurd for me to argue to a 
Senate that the removal of a President of the United States 
should not depend upon the question whether an Adjutant 
General was a proper locum tenens or not, or whether entangled 
between the horns of the repealed and unrepealed statutes 
the President may have erred in that on which he hung his 
rightful authority. 

Let me now call your attention to an exercise of this 
power of ad interim appointment as held in the adminis- 
tration of President Lincoln, at page 582 of the record, 
before the enactment of the statute of 1863. You will 
observe that before the passing of the act of 1863 there was 
in force no statutory authority for the appointment of ad 
interim discharge of the offices except the acts of 1792 and 
1795, which were limited in their terms to the Departments 
of War, of State, and of the Treasury. You have, therefore, 
directly in this action of President Lincoln the question of 
ultra vires, not of an infraction of a prohibitory statute with 
a penalty, but of an assumption to make an appointment 
without the adequate support of an enabling act of Congress 
to cover it, for he proceeded, as will be found at the very 
top of that page : 

I hereby appoint St. John B. L. Skinner, now acting First 
Assistant Postmaster General, to be acting Postmaster General 
ad interim, in place of Hon. Montgomery Blair, now temporarily 
absent. 

Abraham Lincoln. 
Washington, September 22, 1862. 

The Department of the Post Office was not covered by 
the acts of 1792 or 1795, and the absence of authority in 

33 



482 SPEECHES OF ^^TLLIAM INIAXWELL EVARTS 

respect to it and the other later organized departments 
formed the occasion of the President's message which led 
to the enactment of 1863. I would like to know whether, 
when President Lincoln appointed Mr. Skinner to be Post- 
master General, without an enabling and supporting act 
of Congress to justify him, he deserved to be impeached, 
whether that was a crime against the Constitution and his 
oath of office, whether it was a duty due to the Constitu- 
tion that he should be impeached, removed, and a new 
election ordered ^ 

I cannot but insist upon always separating from these 
crimes alleged in articles the guilt that is outside of articles 
and that has not been proved, and that I have not answered 
for the respondent nor have been permitted to rebut by 
testimony. I take the thing as it is, and I regard each 
article as including the whole compass of a crime, the whole 
range of imputation, the whole scope of testimony and con- 
sideration; and unless there be some measure of guilt, some 
purpose, or some act of force, of violence, of fraud, of cor- 
ruption, of injury, of evil, I cannot find in mistaken, 
erroneous, careless, or even indifferent excesses of authority 
making no impression upon the fabric of the government, 
and giving neither menace nor injury to the public service, 
any foundation for this extraordinary proceeding of im- 
peachment. 

Am I right in saying that an article is to contain guilt 
enough in itself for a verdict to be pronounced by the hon- 
orable members of the court "guilty" or "not guilty" on 
that article; guilty, not of an act as named, but "guilty of a 
high crime and misdemeanor as charged," and as the form of 
question adopted in the Peck and Chase trials is distinctly 
set down, and not the question used in the Pickering trial 
for a particular purpose, which has led the honorable mana- 
ger [Mr. Wilson], to denounce it as a mockery of justice, a 
finding of immaterial facts, leaving no conclusions of law or 
judgment to be found by anybody. 



IIVIPEACHIVIENT OF PRESIDENT JOHNSON 483 

There Is another point of limitation on the authority of 
the President, as contained both in the act of 1795 and of 
1863, which has been made the subject of some comment by 
the learned and honorable manager [Mr. Boutwell]: it is 
that anyhow and anyway the President has been guilty of a 
high crime and misdemeanor, however innocent otherwise, 
because the six months' ability accorded to him by the act 
of 1795 or 1863 had already expired before he appointed 
General Thomas. 

The reasoning I do not exactly understand; It Is definitely 
written down and the words have their ordinary meaning, 
I suppose; but how it is that the President is chargeable 
with having filled a vacancy thus occurring on the 21st of 
February, 1868, if It occurred at all, by an appointment 
that he made ad interim on that day which was to run in 
the future, what the suggestion that the six months' right 
had expired rests upon, I do not understand. It is attempted 
to connect it in some way with a preceding suspension of Mr. 
Stanton under the civil-tenure act, which certainly did not 
create a vacancy in the office, as by law it was prohibited 
from doing, nor did it create in any form or manner a vacancy 
in the ofiice. No matter, then, whether the suspension was 
under the civil-tenure-office act or the act of 1795, the office 
was not vacant until the removal; and whatever there may 
have been wanting In authority in that preceding action 
of the President as not sufficiently supported by his consti- 
tutional authority to suspend, which he claims, and as 
covered necessarily by the act of 1867, as Is argued on the 
part of the managers, I cannot see that it has anything to 
do with cutting short the term during which it was com- 
petent for the President to make an ad interim appointment. 
There remains nothing to be considered except about an 
ad interim appointment as occurring during the session of the 
Senate. An effort has been made to connect a discrimina- 
tion between the session and the recess of the Senate in its 



484 SPEECHES OF WILLIAM MAXWELL EVARTS 

operation upon the right of ad interim or temporary appoint- 
ments, with the discrimination which the Constitution makes 
between the fiUing of an office during the session and the 
limited commission which is permitted during the recess. 
But sufficiently, I imagine, for the purposes of conviction in 
your minds, it has been shown that temporary appoint- 
ment does not rest upon the constitutional provisions at all; 
that it is not a filling of the office, which remains just as 
vacant, as far as the constitutional right and duty remains or 
is divided in the different departments of the government, 
as if the temporary appointment had not been made. 
When the final appointment is made, it dates as from the 
time of the vacancy, and to supply the place of the person, 
whose vacancy led to the ad interim appointment. That in 
the very nature of things there should be no difference in this 
capacity between recess and session sufficiently appears, and 
the acts of Congress draw no distinction, and the practice 
of the government makes not the least difference. 

We are able to present to your notice on the pages of 
this record, cases enough applicable to the very heads of 
departments to make it unnecessary to argue the matter 
upon general principles any further. Mr. Nelson, on the 
29th of February, 1844, was appointed ad interim in the 
State Department during the session of the Senate. This is 
to be found on page 556. General Scott was appointed in 
the War Department July 23, 1850, page 537, during the 
session of the Senate; Moses Kelly, Secretary of the Interior, 
January 10, 1861, during the session of the Senate, at page 
558; and Joseph Holt, Secretary of War, on the 1st of Jan- 
uary, 1861, during the session of the Senate, at page 583. 
Whether these were to fill vacancies or for temporary disa- 
bilities makes no difference on the question; nor how the 
vacancy arose, whether by removal or resignation or death. 

The question of the ad interim faculty of appointment 
depends upon no such considerations. They were actual 



IMPEACHMENT OF PRESIDENT JOHNSON 485 

vacancies filled by ad interim appointment, and related, all 
except that of Moses Kelly, to departments that were 
covered by the legislation of 1792 and 1795, That of Moses 
Kelly to the Department of the Interior was not covered 
bj^ that legislation » and would come within the same prin- 
ciple with the appointment of Mr. Skinner which I have 
noticed on page 582. 

I now come with the utmost confidence, as having passed 
through all possible allegations of independent infraction of 
the statute, to the consideration of the removal of Mr. 
Stanton as charged as a high crime and misdemeanor in the 
first article, and as to be passed upon by this court under 
that imputation and under the President's defence. The 
crime as charged must be regarded as the one to be con- 
sidered, and the crime, as charged and also proved, to be the 
only one upon which the judgment has to pass. Your 
necessary concession to these obvious suggestions relieves, 
very much of any difiiculty and of any protracted discussion, 
this very simple subject as it will appear to be. 

Before taking up the terms of the article and the consid- 
eration of the facts of the procedure I ask your attention 
now, for we shall need to use them as we proceed, to some 
general light to be thrown, both upon the construction of 
the act by the debates of Congress and upon the relation 
of the cabinet as proper witnesses or proper aids in reference 
to the intent and purpose of the President within the prac- 
tice of this government, and with the latter, first. 

Most extraordinary (as I think) views have been pre- 
sented in behalf of the House of Representatives in relation 
to cabinet ministers. The personal degradation fastened 
upon them by the observation of the honorable manager 
[Mr. Bout well] I have suflflcient'y referred to; but I recollect 
that there are in your number two other honorable senators, 
the honorable senator from Maryland [Mr. Johnson] and 
the honorable senator from Iowa [Mr. Harlan] who must 



486 SPEECHES OF WILLIAM MAXWELL EVARTS 

take their share of the opprobrium which yesterday I divided 
among three members of this court alone. 

But as a matter of constitutional right, of ability of the 
President to receive aid and direction from these heads of 
departments, it has been presented as a dangerous innova- 
tion, of a sort of Star Chamber council, I suppose, intruded 
into the Constitution, that was to devour our liberties. 
Well, men's minds change rapidly on all these public ques- 
tions, and perhaps some members of this honorable Senate 
may have altered their views on that point from the time of 
the date of the paper I hold in my hand, to which I wish to 
ask your attention. It is a representation that was made to 
Mr. President Lincoln by a very considerable number of 
senators as to the propriety of his having a cabinet that 
could aid him in the discharge of his arduous executive 
duties : 

The theory of our government, the early and uniform practical 
construction thereof, is that the President should be aided by a cabi- 
net council agreeing with him in political principle and general 
policy, and that all important measures and appointments should 
be the result of their combined wisdom and deliberation. The 
most obvious and necessary condition of things, without which no 
administration can succeed, we and the public believe does not 
exist; and, therefore, such selections and changes in its members 
should be made as will secure to the country unity of purpose and 
action in all material and essential respects. More especially in the 
present crisis of public affairs the cabinet should be exclusively 
composed of statesmen who are cordial, resolute, unwavering sup- 
porters of the principles and purposes above mentioned. 

There arc appended to this paper as it comes to me the 
signatures of twenty-five senators. Whether it was so 
signed or not I am not advised; but that it was the action of 
those senators, I believe, is not doubted, and among them 
there are some fifteen or more that are members of this pres- 
ent court. The paper has no date, but the occurrence was, I 



II^IPEACIEVIENT OF PRESIDENT JOHNSON 487 

think, some time in the year 1862 or 1863, a transaction and 
a juncture which is f amihar to the recollection of senators who 
took part in it, and doubtless of all the public men whom 
I have the honor now to address. 

These honorable managers in behalf of the House of Rep- 
resentatives do not hold to these ideas at all, and I must 
think that the course of this court in its administration of 
the laws of evidence as not enabling the President to pro- 
duce the supporting aid of his cabinet, which you said he 
ought to have in all his measures and views, has either pro- 
ceeded upon the ground that his action, in your judgment, 
did not need any explanation or support, or else you had not 
sufficientlv attended to these valuable and useful views about 
a cabinet which were presented to the notice of President 
Lincoln. Public rumor has said, the truth of which I do not 
vouch, as I have no knowledge, but there are many who 
well know that the President rather turned the edge of this 
representation, by a suggestion whether in fact the meaning 
of the honorable senators was not that his cabinet should 
agree with them rather than with him, Mr. Lincoln. How- 
ever that may be, the doctrines are good and are according 
to the custom of the country and the law of our government. 

We may then find it quite unnecessary to refute by any 
very serious and prolonged argument the imputations and 
invectives against cabinet agreement with the President 
which have been urged upon your attention. 

And now, as bearing both on the question of a fair right 
to doubt and deliberate on the part of the President on the 
constitutionalitv of this law, the civil-tenure act, and on the 
construction of its first section as embracing or not em- 
bracing Mr. Stanton, I may be permitted to attract your 
attention to some points in the debates in the Congress which 
have not yet been alluded to, as well as to repeat some very 
brief quotations which have once been presented to your 
attention. I will not recall the history of the action of the 



488 SPEECHES OF WILLIAM MAX^VELL EVARTS 

House on the general frame and purpose of the bill, nor the 
persistence with which the Senate, as the adviser of the 
President in the matters of appointment as well as a member 
of the legislative branch of the government, pressed the 
exclusion of cabinet ministers from the purview of the bill 
altogether; but when it was found that the House was per- 
sistent also in its view, the Senate concurred with it on con- 
ference in a measure of accommodation concerning this 
special matter of the cabinet which is now to be found in the 
text of the first section of the act. In the debate on the 
tenure-of-ofBce bill the honorable senator from Oregon [Mr, 
Williams], who seems to have had, with the honorable 
senator from Vermont [Mr. Edmunds], some particular con- 
duct of the debate according to a practice apparently quite 
prevalent now in our legislative halls, said this: 

I do not regard the exception as of any great practical conse- 
quence — 

That is, the exception of cabinet ministers — 

because, I suppose, if the President and any head of a department 
should disagree, so as to make their relations unpleasant, and the 
President should signify a desire that that head of department 
should retire from the cabinet, that would follow without any 
positive act of removal on the part of the President. (Congres- 
sional Globe, 39th Congress, second session, p. 383.) 

Mr. Sherman, bearing on the same point, said: 

Any gentleman fit to be a cabinet minister, who receives an inti- 
mation from his chief that his longer continuance in that office is 
unpleasant to him, would necessarily resign. If he did not resign, 
it would show he was unfit to be there. I cannot imagine a case 
where a cabinet officer would hold on to his place in defiance and 
against the wishes of his chief. ( 7/^;V/., p. 1046.) 

But, nevertheless, this practical lack of importance in the 
measures which induced the Senate to yield their opinions 



IMPEACHMENT OF PRESIDENT JOHNSON 489 

of regularity of governmental proceedings and permit a 
modification of the bill, led to the enactment as it now 
appears; and the question is how this matter was under- 
stood, not by one man, not by one speaker, but, so far as 
the record goes, by the whole Senate, on the question of 
construction of the act as inclusive of Mr. Stanton in his 
personal incumbency of office or not. When the conference 
committee reported the section as it now reads, as the result 
of a compromise between the Senate in its firm views and 
the House in its firm purposes, the honorable senator from 
Michigan [Mr. Howard] asked that the proviso might be 
explained. Now, you are at the very point of finding out 
what it means when a senator gets so far as to feel a doubt, 
and wants to know and asks those who have charge of the 
matter and are fully competent to advise him. The honor- 
able senator, Mr. Williams, states: 

Their terms of office shall expire when the term of office of the 
President by whom they were appointed expires. 

I have, from the beginning of this controversy, regarded this as 
quite an immaterial matter, for I have no doubt that any cabinet 
minister who has a particle of self-respect — and we can hardly 
suppose that any man would occupy so responsible an office with- 
out having that feeling — would decline to remain in the cabinet 
after the President had signified to him that his presence was no 
longer needed. As a matter of course, the effect of this provision 
will amount to very little, one way or the other; for I presume 
that whenever the President sees proper to rid himself of an 
offensive or disagreeable cabinet minister, he will only have to 
signify that desire, and the minister will retire, and a new appoint- 
ment be made. (Ibid., p. 1515.) 

Mr. Sherman, one of the committee of conference, states: 

I agreed to the report of the conference committee with a great 
deal of reluctance. 

I think that no gentleman, no man of any sense of honor, would 
hold a position as a cabinet officer after his chief desired his re- 



490 SPEECHES OF WILLIAM MAXAVELL EVARTS 

moval, and, therefore, the shghtest intimation on the part of the 
President would always secure the resignation of a cabinet officer. 
For this reason I do not wish to jeopard this bill by an unimportant 
and collateral question. 

He proceeds further: 

The proposition now submitted by the conference conmittee — 

And this was in answer to the demand of the Senate to 
know from the committee w^hat they had done, and what 
the operation of it was to be. The answer of Mr. Sherman is : 

The proposition now submitted by the conference committee 
is that a cabinet minister shall hold his office during the life or term 
of the President who appointed him. If the President dies the 
cabinet goes out; if the President is removed for cause by impeach- 
ment the cabinet goes out; at the expiration of the term of the Presi- 
dent's office the cabinet goes ovit. 

This is found at page 1515 of the Globe of that year. Now, 
how in the face of this can we with patience listen to long 
arguments to show that, in regard to cabinet ministers sit- 
uated as Mr. Stanton is, the whole object of limitation of 
the proviso and the bill to which the Senate was ready to 
assent becomes nugatory and unprotective of the President's 
necessary right, by a constructive enforcement against him 
of a continuing cabinet officer whom he never appointed at 
all? And how shall w^e tolerate this argument that the term 
of a President lasts after he is dead, and that the term in 
which Mr. Stanton was appointed by Mr. Lincoln lasts 
through the succeeding term to which Mr. Lincoln was sub- 
sequently elected.? But that is not the point. You are asked 
to remove a President from office under the stigma of im- 
peachment for crime, to strike down the only elected head 
of the government that the actual circumstances permit the 
Constitution to have recourse to, and to assume to your- 
selves the sequestration and administration of that office ad 
interim upon the guilt of a President in thinking that Mr. 



IMPEACHMENT OF PRESIDENT JOHNSON 491 

Sherman, in behalf of the conference committee, was right 
in explaining to the Senate what the conference committee 
had done. Nobody contradicted him; nobody wanted any 
further explanation; nobody doubted that there was no vice 
or folly in this act that, in undertaking to recognize a limited 
right of the President not to have ministers retained in office 
that he had not had some voice in appointing, gave it the 
shape, and upon these reasons, that it bears to-day. 

And I would like to know who it is, in this honorable Senate, 
that will bear the issue of the scrutiny of the revising people 
of the United States, on a removal from office of the President 
for his removal of an officer, that the Senate has thus declared 
not to be within the protection of the civil-tenure act. Agree 
that, judicially, afterward it may be determined anywhere 
that he is, who will pronounce a judgment that it is wrong 
to doubt? Ego assentior eo, the President might well say, in 
deference to the opinion of Mr. Sherman, even if that judg- 
ment of some inferior court, to say nothing even of the high- 
est, the Supreme Court, or the highest special jurisdiction, 
this court, should determine otherwise. 

But the matter was brought up a little more distinctly. 
Mr. Doolittle having said that this proviso would not keep 
in the Secretary of War and that that had been asserted in 
debate as its object, Mr. Sherman, still having charge of the 
matter, as representing the conference committee, proceeds : 

That the Senate had no such purpose was shown by its vote 
twice to make this exception. That this provision does not apply 
to the present case is shown by the fact that its language is so 
framed as not to apply to the jyresent President. The senator 
shows that himself, and argues truly that it would not prevent 
the present President from removing the Secretary of War, the Sec- 
retary of the Navy, and the Secretary of State. And if I supposed 
that either of these gentlemen was so wanting in manhood, in 
honor, as to hold his place after the politest intimation by the 
President of the United States that his services were no longer 



492 SPEECHES OF WILLIAM MAXWELL EVARTS 

needed, I, certainly, as a senator, would consent to his removal, 
and so would we all. 

That is at page 1516 of the Globe; and yet later, in con- 
tinuation of the explanation, the same honorable senator 
says thus definitely: 

We provide that a cabinet minister shall hold his office, not for a 
fixed term, not until the Senate shall consent to his removal, but 
as long as the power that appoints him holds office. If the principal 
office is vacated, the cabinet minister goes out. (Page 1517.) 

And if the principal office is not vacated by death under 
our government, we certainly belong to the race of the im- 
mortals. Now, Senators, I press upon your consideration the 
inevitable, the inestimable weight of this senatorial discus- 
sion and conclusion. I do not press it upon particular sena- 
tors who took part in it, especially. I press it upon the con- 
curring, unresisting, assenting, agreeing, confirming, corro- 
borating silence of the whole Senate. And I would ask if a 
President of the United States and his cabinet, having 
before them the question upon their own solution of the 
ambiguities or diflSculties, if there be any (and I think there 
are not), in this section, might not well repose upon the sense 
of the Senate that they would not have agreed to the bill if 
it had any such efficacy as is now pretended for it, and the 
explanation of the committee, and the acceptance of it by 
the Senate that it had no such possible construction or force. 
Nevertheless if the President must be convicted of a high 
crime and misdemeanor for this concurrence with your united 
judgments, and that sentence proceeds also from your united 
judgments, we shall have great difficulty in knowing which 
of your united judgments is entitled to the most regard. 

In the House this matter was considered in the statements 
of Mr. Schenck, who with Mr. Williams and Mr. W^ilson, 
now among the managers, constituted the conference com- 
mittee, Mr. Williams having been, as is well known, one of 



IMPEACHMENT OF PRESIDENT JOHNSON 493 

the principal promoters of the original measure. Mr. 
Schenck states upon a similar inquiry made in the House as 
to what they had all done on conference: 

A compromise was made by which a further amendment is 
added to this portion of the bill, so that the term of office of the 
heads of departments shall expire with the term of the President 
who appointed them, allowing those heads of departments one 
month longer, in which in case of death or otherwise, other heads 
of departments can be named. This is the whole effect of the 
proposition reported by the committee of conference. 

And again: 

Their terms of office are limited, as they are not now limited, by 
law, so that they expire with the term of service of the President 
who appoints them and one month after. (Congressional Globe, 
second session thirty-ninth Congress, page 1340.) 

Not the elected term, but "the term of service"; and if 
removal by impeachment terminates the term of service, as 
it certainly does, or death by a higher power equally termi- 
nates it, upon Mr. Schenck's view, in which apparently 
Messrs. Managers Wilson and Williams concurred, the 
House is presented as coming to the same conclusion with 
the Senate. Nevertheless, the whole grave matter left of 
crime is an impeachment by the House for making the 
removal, and a condemnation sought from the Senate upon 
the same ground; and we are brought, therefore, to a con- 
sideration of the meaning of the act, of its constitutionality, 
of the right of the President to put its constitutionality in 
issue by proper and peaceful proceedings, or of his right to 
doubt and differ on the construction, and honestly, peace- 
fully to proceed, as he might feel himself best advised to 
learn what it truly meant. 

And now I may here at once dispose of what I may have 
to say definitely in answer to some proposition insisted upon 
by the honorable manager [Mr. Bout well]. He has under- 



494 SPEECHES OF ^MLLIAM MAXWELL EVARTS 

taken to disclose to you his views of the result of the debate 
of 1789, and of the doctrines of the government as there 
developed, and has not hesitated to claim that the limitation 
of those doctrines was confined to appointments during the 
recess of the Senate. Nothing could be less supported by 
the debate or by the practice of the government. In the 
whole of that debate, from beginning to end, there is not 
found any suggestion of the distinction that the honorable 
manager has not hesitated to lay down in print for your 
guidance as its result. The whole question was otherwise, 
whether or no the power of removal resided in the President 
absolutely. If it did, why should he not remove at one time 
as well as at another.'^ The power of appointment was 
restricted in the Constitution by a distinction between recess 
and session. If, on the other hand, the power of removal was 
administrable by Congress, it needed to provide for its de- 
posit with the President, if that was the idea, as well in time 
of session as in time of recess, because the whole question and 
action of the separate exercise of the power of removal from 
the power of appointment would arise when the emergency 
of removal dictated instant action. We understand that 
when the removal is political, or on the plan of rotation in 
office, as we call it, the whole motive of the removal is the 
new appointment. 

The new appointment is the first thought and wish. There 
is no desire to get rid of the old officer except for the purpose 
of getting in the new. And therefore the general practice of 
the government in its mass of action, since the time of rota- 
tion in office began, is of this political removal, which is not 
getting rid of the old officer from any objection to him, but 
because his place is wanted for the new. Hence all this 
parade of the action of the government showing that it has 
been the habit in those political appointments to send in the 
name of the new man, and by that action j^ut him in the 
place of the old, serves no purpose of argument, and carries 



IMPEACHMENT OF PRESIDENT JOHNSON 495 

not a penny's weight on the question. The form of the 
notice as in the last one on your table, the appointment of 
General Schofield, and so from the beginning of the office, is 
"in place of A B," not "to be removed by the Senate," but 
"of A B, removed," meaning this: "I, as President, have no 
power to appoint unless there is a vacancy; I tell you that I 
have made a vacancy or present to you a case of vacancy 
created by my will, by removal, not death or resignation; and 
I name to you C D to be appointed in the place of A B, 
removed." That is the meaning of that action of the gov- 
ernment. 

You will observe that in finding cases in the practice of the 
government where there has been a separate act of removal 
during session, or during recess either, we are under two 
necessary restrictions as to their abundance or frequency, 
which the nature of the circumstances imposes. The first is 
that in regard to cabinet officers you can hardly suppose an 
instant in which a removal can be possible, because in the 
language of honorable senators, you can hardly conceive of 
the possibility of a cabinet officer's not resigning when it is 
intimated to him that his place is wanted; and, therefore, 
all this tirade of exultation that we found no case of removal 
of a cabinet officer save that of Timothy Pickering rests upon 
Senator Sherman's proposition and Senator Williams's prop- 
osition that you cannot conceive of the possibility of there 
being a cabinet minister that would need to be removed, and 
the practice of our government has shown that these honor- 
able senators were right in their proposition, and that there 
never have been, from the foundation of the government to 
the present time, but two cases where there were cabinet 
ministers that on the slightest intimation of their chief did 
not resign. Now, do not urge on us the paucity of the cases 
of removal of heads of departments as not helping the prac- 
tice of the government when that paucity rests upon retire- 
ment whenever a President desires it. 



496 SPEECHES OF WILLIAM MAXWELL EVARTS 

Mr. Pickering, having nothing but wild land for his sup- 
port and a family to sustain, flatly told Mr. Adams that he 
would not resign, because it would not be convenient for him 
to make any other arrangements for a living until the end of 
his term; and the President, without that consideration of 
domestic reasons which perhaps Mr. Pickering hoped would 
obtain with him, told him that he removed him, and he did; 
and he went, I believe, to his wild land and was imprisoned 
there by the squatters, and came into very great disaster 
from this removal. Mr. Stanton, under the motives of public 
duty, it is said, takes the position that for public reasons he 
will not resign. These are the only two cases in our govern- 
ment in which the question has arisen, and in one of them, 
before the passage of the civil-tenure act, the Secretary was 
instantly removed by the power of the President, and in the 
other it was attempted after long sufferance. 

We can find in the history of the government — for we 
should hardly expect to escape the occurrence when we have 
so many officers — instances enough of removal by Executive 
authority during the session of the Senate of subordinate 
officers of the government who derived their appointment 
from the President, by the advice and consent of the Senate, 
and every one of those cases is pertinent and an instance. 
You will observe in regard to them, as I said before, how 
peculiar must be the situation of the officer and office and 
of the President toward them when this separate, independ- 
ent, and condemnatory removal needs to take place. In the 
first place, there must be some fault in the conduct of the 
officer, not necessarily crime, and not necessarily neglect of 
office, but some fault in manner at least, as of that collector 
down in Alabama, who, when he was asked by the Secretary 
of the department how far the Tombigbee ran up, answered 
that it did not run up at all; and he was removed 
from office for his joke on the subject of the Tombigbee 
river not running up, but, as other rivers do, running down. 



IMPEACHMENT OF PRESIDENT JOHNSON 497 

It does not do to have these asperities on the part of inferior 
officers. So, too, when the fault arises of peculation, of 
deficiency of funds, or what not, the sureties know of it, 
come forward and say to the officer, "You must resign; we 
cannot be sureties any longer here"; and in nine cases out 
of ten, where an occurrence would lead to removal, it is met 
by the resignation of the inferior officer. Therefore the prac- 
tice of the government can expect to suggest only the pecu- 
liar cases where promptitude and necessity of the rough 
method of removal are alike demanded from the Executive. 
I will ask the attention of this honorable court to the cases 
we have presented in our proofs, with the page and instance 
of each removal during the session of the Senate. That is 
the condition of this list — the whole of it: 

Year Page 

Timothy Pickering 1800 357 

Thomas Eastin, navy agent at Pensacola 1840 569 

Isaac Henderson, navy agent 1864 571 

James S. Chambers, navy agent 1864 572 

Amos Binney 1826 573 

John Thomas 1841 573 

Samuel F. Marks 1860 581 

Isaac V. Fowler 1860 581 

Mitchell Steever 1861 581 

I think the honorable senators must give their assent to 
the propositions I have made that in regard to cabinet offi- 
cers it is almost impossible to expect removal as a separate 
act; that political removals necessarily have for their first 
step the selection and presentation of the new man for whose 
enjojanent of office the removal is to take place; that in 
regard to criminality and necessity requirmg instant re- 
moval of subordinate officers, resignation will then be re- 
quired by their sureties or by their sense of shame or their 
disposition to give the easiest issue to the difficulty in which 
they are placed; and when with the circumstances of the 



498 SPEECHES OF WnJJAM MAX\^TLL EVARTS 

matter reducing the dimensions of the possibility and the 
frequency within these narrow Hmits I present to you on 
behalf of the respondent these evidences of the action of this 
government during the session of the Senate, I think you 
must be satisfied with the proposition assented to by every 
statesman — I think assented to by every debater on the 
passage of this civil-tenure act: that the doctrine and the 
action and the practice of the government had been that the 
President removed in session or in recess, though some dis- 
crimination of that kind was attempted; but the facts, the 
arguments, the reasons all show that removal, if a right and 
if a power, is not discriminated between session and recess. 
Look at it in regard to this point: the Senate is in session, 
and a public officer is carrying on his frauds at San Fran- 
cisco or at New York, or wheresoever else, perhaps in Hong 
Kong or Liverpool, and it comes to the knowledge of the 
Executive; the session of the Senate goes on; the fact of his 
knowledge does not put him in possession of a good man to 
succeed him either in his own approval or in the assent of 
the new nominee; and if it is necessary under our Constitu- 
tion that the consul at Hong Kong or at Liverpool, or the 
sub-treasurer at New York, or the master of the mint at 
San Francisco, should go on with his frauds until you and 
the President can find a man and send him there and get his 
assent and his qualifications, very well. It is not a kind of 
legislation that is adapted to the circumstances of the case 
is all that I shall venture to suggest. Whatever your positive 
legislation has done or attempted to do, no construction and 
no practice of the government while the executive depart- 
ment was untrammelled by this positive restriction has ever 
shown a discrimination between session and recess. Of 
course, the difference between session and recess is shown in 
the political appointments where, the object being the new 
appointment, the commission goes out in the recess; where, 
during the session, the object being the new appomtment, it 
must proceed through the concurrence of the Senate. 



IMPEACIBIENT OF PRESIDENT JOHNSON 499 

And now that I come to consider the actual merits of the 
proceeding of the President and give a precise construction 
to the first section of the bill, I need to ask j^our attention to 
a remarkable concession made by Mr. Manager Butler in his 
opening, as we regarded it, that if the President, having this 
wish of removal, had accomplished it in a method the pre- 
cise terms of which the honorable manager was so good as 
to furnish, then there would have been no occasion to have 
impeached him. It is not then, after all, the fortiter in re on 
the part of the President that is complained of, but the 
absence of the snariter in modo; and you, as a court, upon 
the honorable manager's own argument, are reduced to the 
necessity of removing the President of the United States not 
for the act, but for the form and style in which it was done, 
just as the collector at Mobile was removed for saying that 
the river Tombigbee did not run up at all. 

But more definitely the honorable manager [Mr. Bout- 
well] has laid down two firm and strong propositions — I will 
ask your attention to them — bearing on the very merits of 
this case. We argue that if this act be unconstitutional we 
had a right to obey the Constitution, at least in the intent 
and purpose of a peaceful submission of the matter to a 
court, and that our judgment on the matter, if deliberate, 
honest, and supported by diligent application to the proper 
sources of guidance, is entitled to support us against an in- 
crimination. To meet that, and to protect the case against 
the injury from the exclusion of evidence that tends to that 
effect, the honorable manager [Mr. Boutwell] does not hesi- 
tate to say that the question of the constitutionality or 
unconstitutionality of the law does not make the least differ- 
ence in the world where the point is that an unconstitutional 
law has been violated, and for a President to violate an 
unconstitutional law is worthy of removal from office. Now, 
mark the desperate result to which the reasoning of the 
honorable managers, under the pressure of our argument. 



500 SPEECHES OF WILLIAJVI MAX\^^LL EVARTS 

has reduced them. That is their proposition, and the reason 
for that proposition is given in terms. If that is not so; if 
the question of constitutionahty or unconstitutionahty in 
fact is permitted to come into your considerations of crime, 
then you would be punishing the President for an error of 
judgment, or releasing him or condemning him according as 
he happened to have decided right or wrong, and that the 
honorable manager tells us is contrary to the first principles 
of justice. Let us, before we get through with this matter, 
have some definite meeting of minds on this subject between 
these honorable managers and ourselves. 

At page 814, in the argument of the honorable manager 
[Mr. Boutwell], we are told that "the crime of the President 
is not, either in fact or as set forth in the articles of impeach- 
ment, that he has violated a constitutional law; but his 
crime is that he has violated a law, and in his defence no 
inquiry can be made whether the law is constitutional," and 
that the Senate in determining innocence or guilt is to render 
no judgment as to the constitutionality of the act. I quote 
the results of his propositions, not the full language. At 
page 815, this is the idea: 

If the President may inquire whether the laws are constitutional, 
and execute those only which he believes to be so, then the govern- 
ernment is the government of one man. If the Senate may in- 
quire and decide whether the law is in fact constitutional, and 
convict the President if he has violated an act believed to be con- 
stitutional, and acquit him if the Senate think the law unconsti- 
tutional, then the President is, in fact, tried for his judgment, to 
be acquitted if, in the opinion of the Senate, it was correct judg- 
ment, and convicted if, in the opinion of the Senate, his judgment 
was erroneous. This doctrine offends every principle of justice. 

That doctrine does with us offend every principle of 
justice, that a President of the United States should be con- 
victed when honestly, with proper advice, peacefully and 
deliberately, he has sought to raise a question between the 



IMPEACHMENT OF PRESIDENT JOHNSON 501 

Constitution and the law; and the honorable manager can 
escape from our argument on that point in no other mode 
than by the desperate recourse of saying that constitutional 
laws and unconstitutional laws are all alike in this country 
of a written Constitution, and that anybody who violates an 
unconstitutional law meets with some kind of punishment 
or other. This confusion of ideas as to a law being valid for 
any purpose that is unconstitutional I have already suffi- 
ciently exposed in a general argument. At page 815 he 
says: 

It is not the right of any senator in this trial to be governed by 
any opinion he may entertain of the constitutionality of the law in 
question. 

You may all of you think the law is unconstitutional, and 
yet you have got to remove the President! "It has not been 
annulled by the Supreme Court." And you may simply 
inquire whether he has violated the law. 

That is pretty hard on us that we cannot even go to the 
Supreme Court to find out whether it is unconstitutional, 
and we cannot regard it on our own oath of office as uncon- 
stitutional and proceed to maintain the obligation to sustain 
the Constitution, and you cannot look into the matter at all, 
but the unconstitutional law must be upheld! 

Nor can the President prove or plead the motive by which he 
professes to have been governed in his violation of the laws of the 
country. 

What is the reason for that.'^ He has taken an oath to 
preserve the Constitution, and therefore he cannot say that 
he acted under the Constitution and not under the law. His 
oath strikes him so that he cannot maintain the Constitu- 
tion, and the Constitution cannot protect him. 

A man who breaks an unconstitutional law on the ground 
that it is unconstitutional and that he has a right to break 
it, is "a defiant usurper." 



502 SPEECHES OF ^^TLLIAJVI MAX^^^LL EVARTS 

Those are the propositions, and I think the honorable 
manager is logical; but the difficulty is, that his logic drives 
him to an absurdity which, instead of rejecting, he adopts — 
a fault in reasoning which certainly we should not expect. 

On the question of construction of the law, what are the 
views of the honorable managers as to the point of guilt or 
innocence? We have claimed that if the President in good 
faith construed this law as not including Mr. Stanton under 
its protection, and he went on upon that opinion, he cannot 
be found guilty. The honorable manager [Mr. Boutwell], at 
page 839, takes up this question and disposes of it in this 
very peculiar manner: 

If a law — 

I ask your attention to this: 

If a law passed by Congress be equivocal or ambiguous in its 
terms, the Executive, being called upon to administer it, may 
apply his own best judgment to the difficulties before him, or he 
may seek counsel of his advisers or other persons; and, acting 
thereupon without evil intent or purpose, he would be fully justi- 
fied— 

We never contended for anything stronger than that — 

he would be fully justified, and upon no principle of right could 
he be held to answer as for a misdemeanor in office. 

Logic is a good thing, an excellent thing; it operates upon 
the mind without altogether yielding to the bias of feeling; 
and as we press an argument, however narrow it may be, 
if it be logical, the honorable managers seem obliged to bend 
to it, and in both cases have thrown away their accusation. 
Tell me, what more do we need than this, an ambiguous and 
equivocal law which the President was called on to act 
under, and might, as we tried to prove, "seek counsel from 
his official advisers or other proper persons, and acting there- 
upon without evil intent or purpose he would be fully justi- 



IMPEACHMENT OF PRESIDENT JOHNSON 503 

fied, and upon no principle of right could he be held to 
answer as for a misdemeanor in office?" And what is the 
answer which the honorable managers make to this logical 
proposition? Why, that this act is not of that sort; it is as 
plain as the nose on a man's face, and it was nothing but 
violent resistance of light that led anybody outside of this 
Senate to doubt what it meant! The honorable manager 
who follows me [Mr. Bingham] will have an opportunity to 
correct me in my statements of their propositions, and to 
furnish an adequate answer, I doubt not, to the views I have 
had the honor now to present. 

And now take the act itself, which is found at page 430 of 
the edition of the statutes I have before me. It is provided — 

That every person holding any civil office, to which he has been 
appointed by and with the advice and consent of the Senate, and 
every person who shall hereafter be appointed to any such office, 
and shall become duly qualified to act therein, is and shall be en- 
titled to hold such office until a successor shall have been in like 
manner appointed and duly qualified, except as herein otherwise 
provided. 

Then the "provision otherwise" is: 

Provided, That the Secretaries of State, of the Treasury, of War, 
of the Navy, and of the Interior, the Postmaster General, and the 
Attorney General, shall hold their offices respectively for and dur- 
ing the term of the President by whom they may have been ap- 
pointed, and for one month thereafter, subject to removal by and 
with the advice and consent of the Senate. 

That is the operative section of this act of erecting and 
limiting the new arrangement of offices. The section of 
incrimination, so far as it relates to removal, I will read, 
omitting all that relates to any other matter; the sixth 
section : 

That every removal . . . contrary to the provisions of 
this act . . . shall be deemed, and is hereby declared to be, a 
high misdemeanor — 



504 SPEECHES OF \^^LLIAM MAX^^^LL EVARTS 

I alter the plural to singular — 

And upon trial and conviction thereof, every person guilty 
thereof shall be punished by a fine not exceeding $10,000, or by 
imprisonment not exceeding five years, or both said punishments, 
in the discretion of the court. 

You will observe that this act does not affix a penalty to 
anything but a "removal," an accomplished removal. Acts 
of a penal nature are to be construed strictly; and yet when- 
ever we ask that necessary protection of the liberty and of 
the property and of the life of a citizen of the United States 
under a penal statute, we are told that we are doing some- 
thing extraordinary for a lawyer in behalf of his client. All 
principles, it seems, are to be changed when you have a 
President for a defendant; all the law retires, and will and 
object and politics assume their complete predominance and 
sway, and everything of law, of evidence, and of justice is 
narrow and not enlarged. That may be. All I can say is 
that if the President had been indicted under this act, or 
should hereafter be indicted under this act, then the law of 
the land would apply to his case as usually administered, and 
if he has not removed Mr. Stanton he cannot be punished for 
having done it. You might have punished an attempt to 
remove. See what you have done in regard to appointments : 

Every appointment or employment made, had, or exercised 
contrary to the provisions of this act, and the making, signing, 
sealing, countersigning, or issuing of any commission or letter of 
authority for, or in respect to any such appointment or employ- 
ment, shall be deemed, and is hereby declared to be, a high mis- 
demeanor. 

There you have made not only an appointment, but an 
attempt on movement of the pen toward an appointment a 
crime, and you will punish it, I suppose, some day or other. 
But removal stands on act and fact. Now, what does the 
article charge in this behalf .^^ for I believe as yet it has not 



IMPEACHMENT OF PRESIDENT JOHNSON 505 

been claimed that it is too narrow to insist that the crime as 
charged in the article shall be the one you are to try. "Re- 
moval" is not charged in the articles anywhere; the allega- 
tion is that Andrew Johnson did unlawfully and in violation 
of the Constitution "issue an order in writing for the removal 
of Edwin M. Stanton, with intent to violate" the civil-tenure 
act, and "with intent to remove him, the Senate being in 
session." If you had had a section of this statute that said 
"any removal, or the signing of any letter, or order, or paper, 
or mandate of removal, shall be a crime," then you would 
have had an indictment and a crime before you; but you 
have neither crime nor indictment, as appears from this first 
article. And yet it may, be said that in so small a matter as 
the question of the removal of a President it does not do to 
insist upon the usual rules of construction of a criminal law. 
I understand the proposition to be this : that here is a crimi- 
nal law which has been violated ; that by the law of the land 
it has been violated, so that indictment could inculpate, ver- 
dict would find guilt, and sentence would follow at law; and 
that thereupon, upon that predicament of guiltiness, the 
President of the United States is exposed to this peculiar 
process of impeachment; and if I show that your law does 
not make punishable an attempt to remove, or a letter of 
removal, and that your article does not charge a removal, 
and that is good at law, then it is good against impeachment, 
or else you must come back to the proposition that you do 
not need a legal crime. 

So much for the law. What is the true attitude of Mr. 
Stanton and of the President of the United States towards 
this office and this officer at the time of the alleged infraction 
of the law.? Mr. Stanton held a perfectly good title to that 
ofiice by the commission of a President of the United States 
to hold it, according to the terms of the commission, "during 
the pleasure of the President for the time being." That is 
the language of the commission. He held a good title to the 



506 SPEECHES OF WILLIAM MAXWELL EVARTS 

office. A quo warranto moved against him while he held that 
commission unrevoked, unannulled, and undetermined would 
have been answered by the production of the commission. 
"I hold this office during the pleasure of the President of the 
United States for the time being, and I have not been re- 
moved by the President of the United States." That was 
the only title he held up to the passage of the civil-tenure 
act. By the passage of the civil-tenure act it is said that a 
statutory title was vested in him not proceeding from the 
executive power of the United States at all, not commis- 
sioned by the Executive of the United States at all, not to 
be found, ascertained, or delegated by the Executive of the 
United States at all, but a statutory title superadded to his 
title from the executive authority which he held during 
pleasure, which gave him a durable office determinable only 
one month after the expiration of some term of years or 
other. 

We are not now discussing the question whether he is 
within it or not. That being so, the first question to which I 
ask your attention is tliis, that the act is wholly unconsti- 
tutional and inoperative in conferring upon Mr. Stanton or 
anybody else a durable office to which he has never been 
appointed. Appointment to all office proceeds from the 
President of the United States, or such heads of department 
or such courts of law as your legislation may repose it in. 
You cannot administer appointment to office yourselves, for 
what the Constitution requires the President to have con- 
trol of you cannot confer anywhere else. The appointment 
of Secretary of War is one which cannot be taken from the 
President and conferred upon the courts of law or the heads 
of department. Whatever may be the action of Congress 
limiting or contriving the office, as you please, the office itself 
is conferable only by the action of the Executive. And when 
Mr. Stanton holds or anybody else holds an office during 
pleasure, which he has received by commission and authority 



IMPEACHMENT OF PRESIDENT JOHNSON 50^ 

of the President of the United States, a sufficient title to, 
you can no more confer upon him by your authority and 
appointment a title durable and in invitum as against the 
President of the United States, you can no more confer it 
upon him because he happens to be holding an office during 
pleasure than you could if he was out of office altogether. 
I challenge contradiction from the lawyers who oppose us 
and from the judgment of honorable and intelligent lawyers 
here. Where are you gomg to carry this doctrine of legisla- 
tive appointment to ofiice if you can carry it to find a man 
whom the President has never asked to hold an office except 
from day to day and can enact him into a durable office for 
life.'^ You may determine tenures if you please; I am not 
now discussing that ; you may determine tenures for life ; but 
you cannot enact people into tenures for life. The President 
must appoint; and his discretion and his judgment in ap- 
pointing to an office for life are very different from his dis- 
cretion and his appointing to an office during his pleasure, 
which he can change at will. Now you will sweep all the 
offices of the country not only into the Senate but into Con- 
gress if you adopt this principle of enacting people into 
oflSce; and if, upon the peg that there is an office at sufferance 
or at will, you can convert it in favor of the holder by an act 
of Congress into an estate for life or for years, you will ap- 
point to office; and of that there can be no doubt. 

The next ciuestion, and the only question, of constitu- 
tionality or construction (for the general question of the 
constitutional power to restrict appointments I shall not 
further trouble the Senate with) is, whether the Secretary 
of War is within the first section. The office of the Secretary 
of War is within the first section undoubtedly. The ques- 
tion, therefore, is whether the provisions concerning the 
office of Secretary of War applicable to that office are in their 
terms, giving them full force and effect, such as to hold Mr. 
Stanton in that office against the will of the President by 



508 SPEECHES OF WILLIAM ]VL\X^\TLL EVARTS 

the statutory term that is appHcable to that office, and is or 
is not appHed to him. 

The argument that if Mr. Stanton is not within the pro- 
viso then he is within the body of the section stumbles over 
this transparent and very obvious, as we suppose, fallacy; 
the question of the law is whether the office of Secretary of 
War is within the proviso or not. You have not made a law 
about Mr. Stanton by name. The question, then, w^hether 
he is within one or the other terms of the alternative, is 
whether the office of Secretary of War is within the section 
or within the proviso; and will anybody doubt about that? 
It is on the same footing with the other secretaryships; it is 
on the same footing as an office with every other department. 
The question whether the office of Mr. Stanton or the office 
of Mr. Browning is within one or the other alternative of the 
section is not a question of construction of law, but a ques- 
tion of whether the facts of the tenure and holding of the 
actual incumbency of the one or the other bring him within 
the proviso. If he is not brought within the proviso, his 
office being there, the fact that he is not in does not carry 
his office back into the first part, because his office would be 
back there for the future as well as for the past and for the 
present. 

It is a statute made for permanent endurance, and the 
office of Secretary of War, now and forever, as long as the 
statute remains upon the book, is disposed of one way or the 
other within the first part or within the proviso. And yet 
we have been entertained, in public discussions as well as in 
arguments here, with what is supposed to be a sort of trium- 
phant refutation, that Mr. Stanton's office in his actual 
incumbency is not protected by the proviso; that then his 
office is carried back under the body of the section. There 
is no doubt about the office being under the proviso. It 
says so: 



IMPEACHMENT OF PRESIDENT JOHNSON 509 

Provided, That the Secretaries of State, of the Treasury, of War, 
of the Navy, and of the Interior, the Postmaster General, and the 
Attorney General, shall hold their offices respectively, etc. 

That does not mean the men; it means the offices shall 
have that tenure. Having got along so far that this office of 
Secretary of War, like the office of Secretary of the Interior, 
must always remain under that proviso, and is never gov- 
ernable or to be governed by the body of the section, we have 
but one other consideration, and that is whether the proviso, 
which is the only part of the section that can operate upon 
the office of Secretary of W^ar, so operates upon that office 
as to cover Mr. Stanton in a durable tenure for the future; 
and that turns upon the question whether the durability of 
tenure provided as a general rule for the office is in the terms 
of its limitation such as to carry him forward, or whether its 
bound has already been reached and he is out of it. That 
is the question of fact in the construction of the proviso. He 
either stays in the proviso or he drops out of the proviso; and 
if he personally drops out of the proviso in his present incum- 
bency he cannot get back into the operative clause, because 
he cannot get back there without carrying his office there, 
and his office never can get back. 

Is it not true that this proviso provides a different tenure 
for the cabinet officers from what the first and operative part 
of the section provides? If this office or this officer goes back, 
this very incumbent goes back; he gets a tenure that will last 
forever, that is, until the Senate consents to his removal. 
How absurd a result that is, to give to this poor President 
control of his cabinet, that those he appointed himself, if he 
should happen to be re-elected, he could get rid of in a month, 
and those that Mr. Lincoln appointed for him from the 
beginning, and before he had any choice in it, he must hold 
on to forever, till you consent that they shall go out; that 
those in regard to whom he had the choice of nomination he 
may by the expiration of the statutory term be freed from, 



510 SPEECHES OF WILLIAM MAXWELL EVARTS 

but those that he had nothing to do with the appointment of 
shall last forever, till you consent to release him specifically 
from them. That is the necessary result of carrying him 
personally back, and Mr. Stanton would hold under the next 
President — if any of you can name him, I will supply in the 
argument his name — I can name several; whether it is the 
President that is to come in by removal from office, or the 
President by the election of the people in the autumn. Either 
way he would have a choice to relieve himself from the Secre- 
taries. No; I think they would all then be in a shape for 
him, all having been appointed by somebody that had pre- 
ceded him, and he would not have any chance at all. 

Such absurdity, either in reasoning or practical result, can 
never be countenanced by the judgment of this court. If 
the office of the Secretary of War is within the proviso, and 
it certainly is, as it is not contended that the other Secreta- 
ries are not in their offices within it, then Mr. Stanton is or 
is not protected by the proviso. If he is not protected by the 
proviso his case is not provided for. Now, suppose this pro- 
viso had contained a second proviso following after the first, 
"and provided further, that the persons now holding the 
offices of Secretary of War, etc., who were appointed and 
commissioned by Mr. Lincoln, shall not be deemed within 
the above proviso, which regulates the tenure of those 
oflSces," that would not have carried the offices back under 
the new tenure of the operative section, but simply have 
provided that, the offices being governed by the proviso, the 
incumbents, under the particular circumstances of their case, 
should not be even protected by the proviso; and this is the 
necessary construction of the act. 

If this be the real construction, there is the end of the 
crime. If the construction be equivocal or ambiguous, the 
honorable manager [Mr. Boutwell] says it would be abhor- 
rent to every sense of justice to punish the President for 
having erred in its construction; but being so plain a case 



IMPEACHMENT OF PRESIDENT JOHNSON 511 

that nobody can say two words on the one side or the other 
of it, it is mere assumption to say that there is a doubt or 
diflSculty, and that an argument is necessary. Well, we cer- 
tainly have belied on the one side and the other the proposi- 
tion of this absolute plainness, for we have spent a great 
many words on this subject on the one side and the other. 
This being so, let us consider what the President did; and 
assuming that the statute covers Mr. Stanton's case, assum- 
ing that the removal of Mr. Stanton is prohibited by it under 
the penalties, let us see what the President did. 

I have said to you that Mr. Stanton had a title to this 
office dependent on the President's pleasure. He claimed, or 
others claimed for him, that he had a tenure dependent on 
the statute. The question of dependence on the statute was 
a question to be mooted and determined as a novel one; the 
question of tenure by appointment was indubitable; and the 
President proposed to put himself in the attitude of reducing 
the tenure of Mr. Stanton to his statutory tenure at least. 
He therefore issues a paper which is a revocation of his com- 
mission, a recall of his office, as it depends on presidential 
appointment. Without that no question ever could be raised 
by any person upon the statutory tenure, because the presi- 
dential tenure would be an adequate answer to a quo war- 
ranto. The President then, peaceably and in writing, issued 
a paper which is served upon Mr. Stanton, saying, in effect, 
"I, the President of the United States, by such authority as 
I possess, relieve or remove you from the office of Secretary 
of War"; and that that recalled and terminated the com- 
mission and the title that was derived from presidential 
appointment nobody can deny. 

Did the President proceed further? When Mr. Stanton, 
as he might reasonably have expected; when, as upon the 
evidence he did probably calculate, instead of adhering to 
his opinion that the tenure-of-office act was unconstitu- 
tional and that the tenure-of-office act did not include his 



512 SPEECHES OF WILLIAM MAXWELL EVARTS 

title, refused to yield the only title that on Mr. Stanton's 
profession he held, to wit, the presidential appointment, to 
this recall, did the President then interpose force to termi- 
nate his statutory title, or did he, having thus reduced him 
to the condition of his statutory title then propose and then 
act either in submission to the power which Mr. Stanton had 
over him, or did he wish to have the question of the statutory 
title determined at law.^^ It is enough to say that he did not 
do anything in the way of force; that he expected in advance, 
as appears by his statements to General Sherman, that Mr. 
Stanton would yield the office. Why should Mr. Stanton 
not yield it.^* The grounds on which he had put himself in 
August were that his duty required him to hold the office 
until Congress met; that is to hold it so that the presidential 
appointment could not take effect without your concurrence. 
Congress had met and was in session, and this "public duty" 
of Mr. Stanton, on his own statement had expired. Mr. 
Stanton had told him that the act was unconstitutional and 
had aided in writing the message that so disclosed the presi- 
dential opinion to you. 

He had concurred in the opinion that he was not within 
the act. His retirement on this order would be in submis- 
sion to these views, if not in submission to the views Senators 
here had expressed that no man could be imagined who 
would refuse to give up office in the cabinet when desired by 
the President; but if that predicament was excusable while 
this Senate was not in session to prevent a bad appointment, 
if that was feared, how could it be a reason when this Senate 
was in session? Mr. Stanton having stated to General 
Thomas on the first presentation of his credential that he 
wanted to know whether he desired him to vacate at once, 
or would give him time to remove his private papers, and 
that having been reported to the President, the President 
regarded it as all settled, and so informed his cabinet, as you 
have permitted to be given in evidence. After that, after 



IMPEACHMENT OF PRESIDENT JOHNSON 513 

the 21st, what act is charged in this article? Up to and 
through the 21st and the written order of removal and its 
delivery to Mr. Stanton, and the repose of the President 
upon that posture in which Mr. Stanton left it, what was 
done by the President about that office? Nothing whatever. 
There was a desire, an effort to seize upon a movement made 
by Mr. Stanton, based upon an affidavit, not that he had 
removed from office, but sworn to on the 21st, and again on 
the early morning of the 22d, that he was still in the office 
and held it agamst General Thomas, and instantly the Presi- 
dent said, "Very well, the matter is in Court." 

It might have gone into Court on the trial of an indictment 
against Thomas; but a speedier method was arrived at in the 
consultations of the President with his counsel, to have a 
habeas corpus carried forward before the Supreme Court, and 
jump at that. Then Mr. Chief Justice Carter, who, I take 
it, all who know him understand to be one who sees as far 
into a millstone as most people, put that cause out of his 
Court by its own weight and the habeas corpus fell with it. 
That is all that is proved and all that is done. I submit to 
you, therefore, that the case of a resistance or violation of 
law does not at all arise. We do not even get to the position 
of whether a formal and peaceable violation, for the purpose 
of raising the cj[uestion before the Supreme Court, was allow- 
able. A revocation of the presidential title of Stanton was 
allowable; a resistance of the statutory title was not at- 
tempted; and the matter stood precisely as it would stand 
if a person was in the habit of cutting wood on your lot, and 
claimed a title to it, and meant to have a right to cut wood 
there, and before you went to law with him to determine the 
right in an action of trespass you were careful to withdraw a 
license terminable at will which you had given him and under 
which he was cutting wood. Withdraw your license before 
you bring your action of trespass or you will be beaten in it. 
Withdraw your license, and then he cuts upon his claim of 

35 



514 SPEECHES OF WILLIAM MAXWELL EVARTS 

right, and your action of trespass has its course and deter- 
mines title. That was the situation. 

All tliat is said about the right to violate unconstitutional 
laws never can have the footing for consideration, where all 
that is done by anybody is to put upon paper the case out 
of which, as an instance, the judgment of a Court can be 
called for as to a violation or no violation. If there must be 
an intervention of force, then a law may be said to be vio- 
lated and an offender must suffer, accordingly as it shall 
prove to be constitutional or unconstitutional. But where 
there is a Constitution as the predominant law, the statute 
as an inferior law, and an executive mandate is issued by the 
President in pursuance of either one law or the other, accord- 
ing to which is in force, for they both cannot be, we suppose, 
then he commits no violation of the law in thus presenting 
for consideration and determination the case. 

We must, then, come either to intent, purpose, motive, 
some force prepared, meditated, threatened, or applied, or 
some evil invasion of the actual working of the department 
of the Government in order to give substance to this allega- 
tion of fault. No such fact, no such intent, no such purpose 
is shown. We are prevented from showing the attendant 
views, information, and purpose upon which the President 
proceeded; and if so, it must be upon the ground that views, 
intent, and purpose do not qualify the act. Very well, then, 
carry it through so; let the managers be held to the narrow- 
ness of their charges when they ask for judgment as they 
are when they exclude testimony, and let it be determined 
upon their reasoning on an article framed upon this plan, 
"that the President of the United States, well knowing the 
act to be unconstitutional, as in fact it is, undertook to make 
an appointment contrary to its provisions and conformable 
to the Constitution of the United States, with the intent that 
the Constitution of the United States should prevail in regard 
to the office in overthrow of the authority of the act of Con- 



IMPEACHMENT OF PRESIDENT JOHNSON 515 

gress, and thereupon and thereby, with an intent against 
which there can be no presumption, for he is presumed to 
have intended to do what he did do, we ask that for that 
purpose of obeying the Constitution rather than an invahd 
law he should be removed from office!" 

And this absurdity is no greater than — for it is but a state- 
ment of — the propositions of law and of fact to which the 
honorable managers have reduced themselves in their theo- 
ries of this cause, which exclude all evidence of intent or 
purpose and of effect and conduct, and take hold upon mere 
personal infraction of a statute of the United States, grant- 
ing, for the purpose of argument, that it may be unconstitu- 
tional, and insisting that, under your judgments, it shall not 
make any difference whether it is unconstitutional or not. If 
that be so, then we have a right to claim that it is unconsti- 
tutional for the purposes of your judgment; and they agree 
that if you cannot so treat it and find us guilty, then it would 
be against the first principles of justice to punish us for an 
erroneous or mistaken opinion concerning constitutionality 

Now, the review of the evidence I do not purpose to weary 
you with. It all lies within the grasp of a handful on either 
side, and it will astonish you, if you have not already perused 
the record, how much of it depends upon the arguments or 
the debates of counsel, how little upon what is included in the 
testimony. Already your attention has been turned to the 
simplicity and folly, perhaps, of the conduct of General 
Thomas; already your attention must have fixed itself upon 
the fact that to prove this threatened couj) d'Stat to over- 
throw the Government of the United States and control the 
Treasury and the War Department you had to go to Dela- 
ware to prove a statement by Mr. Karsner that twenty days 
afterward Thomas said he would kick Stanton out. That is 
the fact; there is no getting over it. A coup d'etat in Wash'ng- 
ton on the 21st of February, meditated, prepared, planned by 
military force, is proved by Karsner, brought from Delaware 



516 SPEECHES OF WILLIAM MAXWELL EVARTS 

to say that on the 9th of March, in the east room, General 
Thomas said he meant to kick Stanton out. That phrase, 
disrespectful as it is, and undoubtedly intimating force, is 
rather of a personal than of a national act. I submit 
that criticism is well founded. I think so. It comes up 
to a breach of the peace, provided it has been perpetrated. 
But it does not come up to that kind of proceeding 
by which Louis Napoleon seized the liberties of the 
French republic; and we expected, under the heats under 
which this impeachment was found, that we should find 
something of that kind. The managers do not neglect little 
pieces of evidence, as is shown by their production of Mr. 
Karsner; and if they find this needle in a haystack and 
produce it as the sharp point of their case, there is nothing 
else, there is no bristling of bayonets under the hay-mow, 
you may be sure. Are there, then, any limits or discrimina- 
tions in transactions of state? Are there public prosecutions, 
public dangers, public force, public menace? Undoubtedly 
there might be, and undoubtedly many who voted for im- 
peachment supposed there were; and undoubtedly the people 
of the United States, when they heard there had been an 
impeachment voted, took it for granted there was something 
to appear. We have gone through it all. There is no defect 
of power nor of will. Every channel of the public informa- 
tion, even the newspapers, seem to be ardent and eager 
enough to aid this prosecution. Everybody in this country, 
all the people of the United States, are interested. They 
love their liberties; they love their Government; and if any- 
body knew of anything that would bear on that question of 
force, the couj) d'etat, we should have heard-it. We must, 
then, submit, with great respect, that upon this evidence and 
upon these allegations there is no case made out of evil pur- 
pose, of large design of any kind, and no act that in form is 
an infraction of any law. 

Now, what is the attitude which you nuist occupy toward 



IMPEACHMENT OF PRESIDENT JOHNSON 517 

each particular charge in these articles? Guilty or not guilty 
of a high crime and misdemeanor by reason of charges made 
and proved in that article; guilty of what the Constitution 
means as sufficient cause for removal of a President from 
office within that article. You are not to reach over from 
one article to another; you are to say guilty or not guilty 
of each as it comes along; and you are to take the first one 
as it appears; you are to treat it as within the premises 
charged and proved; you are to treat the President of the 
United States, for the purpose of that determination, as if 
he were innocent of everything else, of good politics and good 
conduct; you are to deal with him under your oath to ad- 
minister impartial justice within the premises of accusation 
and proof as if President Lincoln were charged with the 
same thing, or General Grant, if the proposition that political 
gratitude is a lively sense of benefits expected leads men's 
minds forward rather than backward in the list of Presi- 
dents; you are to treat it as if the respondent were innocent, 
as if he were your friend, as if you agreed in public senti- 
ment, in public policy; and nevertheless the crime charged 
and proved is such as that you will remove General Wash- 
ington or President Lincoln for the same offence. 

I am not to be told that it was competent for the managers 
to prove that there were coup d'etats, hidden purposes of evil 
to the State, threatened in this innocent and formal act 
apparently. Let them prove it, and then let us disprove it, 
and then judge us within the compass of the testimony and 
according to the law governing these considerations. But I 
ask you if I do not put it to you truly that within the prem- 
ises of a charge and proof the same judgment must go against 
President Lincoln with his good politics, and General Wash- 
ington with his majestic character, as against the respondent? 

And so, as j-ou go along from the first to the second article 
will you remove him for having made an error about the 
repeal or non-repeal of statutes in regard to appointments 



518 SPEECHES OF WILLIAM MAXWELL EVARTS 

to office, if you can find a fault? I cannot see any fault under 
any of the forms of the statutes. If the power of removal of 
Mr. Stanton under the former practice of the Government 
and unrestricted by this civil-tenure act existed, it existed 
during the session as well as during the recess. If that were 
debatable and disputable the prevailing opinion was that it 
covered, and the practice of the Government shows that it 
covered, the removal during the session. x\t any rate, you 
must judge of this as you would have judged of Mr. Lincoln, 
if he had been charged with a high crime in appointing Mr. 
Skinner to be Postmaster General when there was not any 
authority under the appointment acts of the United States. 
And this brings me very properly to consider, as I shall 
very briefly, in what attitude the President stands before 
you when the discussion of vicious politics or of repugnant 
politics, whichever may be right or wrong, is removed from 
the case. I do not hesitate to say that if you separate your 
feelings and your conduct, his feelings and his conduct, from 
the aggravations of politics as they have been bred since his 
elevation to the Presidency, under the peculiar circumstances 
which placed him there, and your views in their severity, 
governed, undoubtedly, by the grave juncture of the affairs 
of the country, are reduced to the ordinary standard and 
style of estimate that should prevail between the depart- 
ments of this Government, I do not hesitate to say that upon 
the impeachment investigations and upon the impeachment 
evidence you leave the general standing of the President un- 
impaired in his conduct and character as a man or as a 
magistrate. Agree that his policy has thwarted and opposed 
your policy, and agree that yours is the rightful policy; 
nevertheless, within the Constitution and within his right, 
and within his principles as belonging to him and known and 
understood when he was elevated to the office, I apprehend 
that no reasonable man can find it in his heart to say that 
evil has been proved against him here. And how much is 



EVIPEACHMENT OF PRESIDENT JOHNSON 519 

there in his conduct toward and for his country that up to 
this period of division commends itself not only to your ap- 
proval but to the approval and applause of all his country- 
men? I do not insist upon this topic, but I ask you to agree 
with me in this : that his personal traits of character and the 
circumstances of his career have made him in opinion what 
he-is, without learning, as it is said by his biographers, never 
having enjoyed a day's schooling in his life, devoted always 
to such energetic pursuits in the service of the State as com- 
mended him to the favor of his fellow-citizens and raised 
him step by step through all the gradations of the public 
service, and in every trial of fidelity to his origin and to the 
common interests proved faithful, struggling always in his 
public life against the aristocratic influences and oppressions 
which domineered so much in the section of country from 
which he came. He was always faithful to the common 
interest of the common people, and carried by his aid and 
efforts as much as any one else the popular measure of the 
homestead act against the southern policy and the aristo- 
cratic purposes of the governing interests of the south. 

And I ask you to notice that, bred in a school of Tennessee 
democratic politics, he had always learned to believe that the 
Constitution must and should be preserved; and I ask you 
to recognize that when it was in peril, and all men south of 
a certain line took up arms against it, and all men north 
ought to have taken up arms in politics or in war for it, he 
loved the country and the Constitution more than he loved 
his section and the glories that were promised by the evil 
spirits of the rebellion. I ask you whether he was not as 
firm in his devotion to the Constitution when he said, in 
December, 1860. 

Then let us stand by the Constitution; and, in saving the 
Union, we save this, the greatest Government on earth. 

And whether, after the battle of Bull Run, he did not show 
as great an adhesion to the Constitution when he said: 



520 SPEECHES OF WILLIAM MAXWELL EVARTS 

The Constitution — which is based on principles immutable, 
and upon which rest the rights of men and the hopes and expec- 
tations of those who love freedom throughout the civilized world — 
must be maintained. 

He is no rhetorician and no theorist, no sophist and no 
philosopher. The Constitution is to him the only political 
book that he reads. The Constitution is to him the only 
great authority which he obeys. His mind may not expand; 
his views may not be so plastic as those of many of his coun- 
trymen; he may not think we have outlived the Constitu- 
tion, and he may not be able to embrace the Declaration of 
Independence as superior and predominant to it. But to 
the Constitution he adheres. For it and under it he has 
served the State from boyhood up — labored for, loved it. 
For it he has stood in arms against the frowns of a Senate; 
for it he has stood in arms against the rebellious forces of 
the enemy; and to it he has bowed three times a day with a 
more than eastern devotion. 

And when I have heard drawn from the past cases of 
impeachment and attempts at deposition, and five hundred 
years have been spoken of as furnishing the precedents ex- 
plored by the honorable managers, I have thought they found 
no case where one was impeached for obeying a higher duty 
rather than a written law regarded as repugnant to it, and 
yet, familiar to every child in this country, as well as to every 
scholar, a precedent much older comes much nearer to this 
expected entanglement. When the princes came to King 
Darius and asked that a law should be made that "whoso- 
ever shall ask any petition for thirty days, save of thee, O 
king, he shall be cast into the den of lions"; and when the 
plea was made that "the law of the Medes and Persians 
altereth not," and the minister of that day, the great head 
and manager of the affairs of the empire, was found still to 
maintain his devotion to the superior law% wdiich made an 
infraction of the lower law, then was the case when the 



IMPEACHMENT OF PRESIDENT JOHNSON 521 

question was whether the power to which he had been 
obedient was adequate to his protection against the power 
that he had disobeyed; and now the question is whether the 
Constitution is adequate to the protection of the President 
for his obedience to it against a law that the princes have 
ordained that seeks to assert itself against it. The result of 
that impeachment we all know, and the protection of the 
higher power was not withheld from the obedient servant. 

The honorable Manager, Mr. Wilson, in the very interest- 
ing and valuable report of the minority of the Judiciary Com- 
mittee, entertains and warns the House of the fate of im- 
peachment as turning always upon those who were ready 
with its axe and sword to destroy. He gives, in the language 
of Lord Caernarvon on Lord Danbv's trial, a historv of the 
whole force of them, and everybody is turned against in his 
turn that draws this sword. In this older case that I have 
referred to you may remember in the brief narrative that we 
have a history of the sequel of the impeachers : 

And they brought those men which had accused Daniel, and 
they cast them into the den of lions, them, their children, and their 
wives; and the lions had the mastery of them, and brake all their 
bones in pieces or ever they came at the bottom of the den. 

This, then. Senators, is an issue not of political but of i)er- 
sonal guilt, within the limits of the charge and within the 
limits of the proof. Whoever dec'des it must so decide, and 
must decide upon that responsibility which belongs to an 
infliction of actual and real punishment upon the respondent. 
We all hold one the other in trust; and when the natural life 
is taken He who framed it demands "Where is thv brother.^" 
And when under our frame of Government, whereby the 
creation of all departments proceeds from the people, which 
breathes into these departments, executive and judicial, the 
breath of life; whose favor is yours as well as the President's, 
continuing force and strength, asks of you, as your sentence 
is promulgated, "Where is thy brother in this government 



522 SPEECHES OF WILLIAM MAXWELL EVARTS 

whom we created and maintained alive?" no answer can be 
given that will satisfy them or will satisfy you, unless it be 
in truth and in fact that for his guilt he was slain by the 
sword of the Constitution upon the altar of Justice. If that 
be the answer you are acquit; he is condemned; and the Con- 
stitution has triumphed, for he has disobeyed and not 
obeyed it, and you have obeyed and not disobeyed it. 

Power does not always sway and swing from the same 
centre. I have seen great changes and great evils come from 
this matter of unconstitutional laws not attended to as un- 
constitutional, but asserted, and prevailing, too, against the 
Constitution, till at last the power of the Constitution took 
other form than that of peaceful, judicial determination and 
execution. I will put some instances of the wickedness of 
disobeying unconstitutional laws and of the triumph of those 
who maintained it to be right and proper. 

I knew a case where the State of Georgia undertook to 
make it penal for a Christian missionary to preach the gospel 
to the Indians, and I knew by whose advice the missionary 
determined that he would preach the gospel and not obey 
the law of Georgia, on the assurance that the Constitution 
of the United States would bear him out in it; and the mis- 
sionary, as gentle as a woman, but as firm as every free citi- 
zen of the United States ought to be, kept on teaching to 
the Cherokees. 

And I knew the great leader of the moral and religious 
sentiment of the United States, who, representing in this 
body, and by the same name and of the blood of one of its 
distinguished Senators now [Mr. Frelinghuysen], the State 
of New Jersey, tried hard to save his country from the 
degradation of the oppression of the Indians at the instance 
of the haughty planters of Georgia. The Supreme Court of 
the United States held the law unconstitutional and issued 
its mandate, and the State of Georgia laughed at it and kept 
the missionary in prison, and Chief Justice Marshall and 



HVIPEACHMENT OF PRESIDENT JOHNSON 523 

Judge Story and their colleagues hung their heads at the 
want of power in the Constitution to maintain the depart- 
ments of it. But the war came, and as from the clouds from 
Lookout Mountain swooping down upon Missionary Ridge 
came the thunders of the violated Constitution of the United 
States and the lightnings of its power, over the still home of 
the missionary Worcester, and the grave of the missionary 
Worcester, taught the State of Georgia what comes of vio- 
lating the Constitution of the United States. 

I have seen an honored citizen of the State of Massachu- 
setts, in behalf of its colored seamen, seek to make a case by 
visiting South Carolina to extend over those poor and feeble 
people the protection of the Constitution of the United 
States. T have seen him attended by a daughter and grand- 
child of a signer of the Declaration of Independence and a 
framer of the Constitution, who might be supposed to have 
a right to its protection, driven by the power of Charleston 
and the power of South Carolina, and the mob and the gen- 
tlemen alike, out of that State and prevented from making 
a case to take to the Supreme Court to assert the protection 
of the Constitution. And I have lived to see the case thus 
made up determined that if the Massachusetts seamen, for 
the support of slavery, could not have a case made up, then 
slavery must cease; and I have lived to see a great captain 
of our armies, a General of the name and blood of Sherman, 
sweep his tempestuous war from the mountain to the sea, 
and returning home trample the State of South Carolina 
beneath the tread of his soldiery; and I have thought that 
the Constitution of the United States had some processes 
stronger than civil mandates that no resistance could meet. 
I do not think the people of Massachusetts suppose that 
efforts to set aside unconstitutional laws and to make cases 
for the Supreme Court of the United States are so wicked as 
is urged here by some of its representatives; and I believe 
that if we cannot be taught by the lessons we have learned 



524 SPEECHES OF WILLIAM MAXWELL EVARTS 

of obedience to the Constitution in peaceful methods of find- 
ing out its meaning, we shall yet need to receive some other 
instruction on the subject. 

The strength of every system is in its weakest part. Alas 
for that rule! But when the weakest part breaks, the whole 
is broken. The chain lets slip the ship when the weak link 
breaks, and the ship founders. The body fails when the 
weak function is vitally attacked; and so with every struc- 
ture, social and political, the weak point is the point of dan- 
ger, and the weak point of the Constitution is now before 
you in the maintenance of the co-ordination of the depart- 
ments of the Government, and if one cannot be kept from 
devouring another then the experiment of our ancestors will 
fail. They attempted to interpose justice. If that fails, 
what can endure.'^ 

We have come all at once to the great experiences and 
trials of a full-grown nation, all of which we thought we 
should escape. We never dreamed that an instructed and 
equal people, with freedom in every form, with a Government 
yielding to the touch of popular will so readily, ever would 
come to the trials of force against it. We never thought that 
what other systems from oppression had developed — civil 
war^ — would be our fate without oppression. We never 
thought that the remedy to get rid of a despotic ruler fixed 
by a Constitution against the will of the people would ever 
bring assassination into our political experience. We never 
thought that political differences under an elective Presi- 
dency would bring in array the departments of the Govern- 
ment against one another to anticipate by ten months the 
operation of the regular election. And yet we take them all, 
one after another, and we take them because we have grown 
to the full vigor of manhood, when the strong passions and 
interests that have destroyed other nations, composed of 
human natiu-e like ourselves, have overthrown them. But 
we have met by tlie j)owers of the Constitution these great 



IMPEACHMENT OF PRESIDENT JOHNSON 525 

dangers — prophesied when they would arise as Hkely to be 
our doom — the distractions of civil strife, the exhaustions 
of powerful war, the intervention of the regularity of power 
through the violence of assassination. We could summon 
from the people a million of men and inexhaustible treasure 
to help the Constitution in its time of need. Can we sum- 
mon now resources enough of ci^nl prudence and of restraint 
of passion to carry us through this trial, so that whatever 
result may follow, in whatever form, the people may feel 
that the Constitution has received no wound ! To this Court, 
the last and best resort for this determination, it is to be left. 
And oh, if you could only carry yourselves back to the spirit 
and the purpose and the wisdom and the courage of the 
framers of the Government, how safe would it be in your 
hands! How safe is it now in your hands, for you who have 
entered into their labors will see to it that the structure of 
your work comports in durability and excellency with theirs. 
Indeed, so familiar has the course of the argument made us 
with the names of the men of the convention and of the first 
Congress that I could sometimes seem to think that the 
presence even of the Chief Justice was replaced by the serene 
majesty of Washington, and that from Massachusetts we 
had Adams and Ames, from Connecticut Sherman and Ells- 
worth, from New Jersey Paterson and Boudinot, and from 
New York Hamilton and Benson, and that they were to 
determine this case for us. Act, then, as if under this serene 
and majestic presence your deliberations were to be con- 
ducted to their close, and the Constitution was to come out 
from the watchful solicitude of these great guardians of it 
as if from their own judgment in this high court of impeach- 
ment. 



VI 

ARGUMENT IN THE UNITED STATES SUPREME 
COURT, ON BEHALF OF THE GOVERNMENT, 
IN HEPBURN VS. GRISWOLD (LEGAL TENDER 

CASE) 

NOTE 

By the legislation of Congress in 1862 the notes of the United 
States were made legal tender for the payment of private debts. 
The case of Hepburn vs. Griswold (Supreme Court Reports, 8 
Wallace 603) brought squarely before the Supreme Court the 
question of the power of Congress under the Constitution to enact 
the measures in question and whether they were applicable to debts 
contracted prior to the enactment. This case was argued at the 
same time as the case of Branson vs. Bodes (7 Wallace, 229). 
Both cases involved controversies between private litigants that 
turned upon the effect of the legal tender legislation. The cases 
were argued and re-argued, and upon the re-argument, December 
9 and 10, 1868, Mr. Evarts, being then Attorney General of the 
United States, delivered the following argument on the public 
questions involved, to sustain in behalf of the Government the 
Constitutionality of the legal tender act, at the same time filing 
with the Court his brief in the cases. Mr. Clarkson N. Potter 
appeared as his opponent. When the legal tender question was 
brought before the Supreme Court, unusual public interest was 
aroused from the fact that Mr. Chase, who as Secretary of the 
Treasury had, during the Civil War, urged upon Congress the im- 
portance and necessity of this legislation to support the credit 
of the Government under the stress of the war, was now the 
Chief Justice of the Court that was to determine the Constitu- 
tional validity of its provisions. It was in these cases that the 
Chief Justice by his influence and vote in a divided court con- 
demned as unconstitutional and void the very measures that his 
influence at the head of the finances of the Government had been 
largely instrumental in procuring from Congress. The case was 

526 



LEGAL TENDER CASE 527 

subsequently reversed in Knox vs. Lee (12 Wallace 457) and the 
legal tender legislation was upheld. 

Mr. Evarts, in his eulogy on Chief Justice Chase, thus speaks of 
this incident in Mr. Chase's career: 

"And now, when, after repeated argument at the bar, and long 
deliberations of the Court, the decision was announced, the de- 
termining opinion of the Chief Justice, in an equal division of the 
six associate justices, pronounced the legal tender acts unconstitu- 
tional, as not within the discretion of the political departments of 
Government, Congress, and the Executive, to determine this very 
question of the necessity of the juncture as justifying their enact- 
ment. 

"The singularity of the situation struck everybody, and greatly 
divided public sentiment between applause and reproaches of the 
Chief Justice, as the principal figure both in the administrative 
measure and in its judicial condemnation. But soon, a new phase 
of the unsettled agitation on the merits of the constitutional ques- 
tion, drew public attention, and created even greater excitement of 
feeling and diversity of sentiment. The Court, which had been 
hostile to the appointing power of President Johnson, had been 
again opened by Congress to its permanent number, and its vacan- 
cies had been filled. A new case, involving the vexed question, 
was heard by the Court, and the validity of the disputed laws was 
sustained by its judgment. The signal spectacle of the Court, 
which had judged over Congress and the Secretary, now judging 
over itself, gave rise to much satire on one side and the other, and 
to some coarseness of contumely as to the motives and the means 
of these eventful mutations in matters, where stability and uni- 
formity are, confessedly, of the highest value to the public inter- 
ests, and to the dignity of Government. 

"Confessing to a firm approval of the final disposition of the 
constitutional question by the Court, I concede it to be a subject of 
thorough regret that the just result was not reached by less un- 
certain steps. But, with this my adverse attitude to the Chief 
Justice's judicial position on the question, I find no difficulty in 
discarding all suggestions which would mix up political calculations 
with his judicial action. The error of the Chief Justice, if, under 
the last judgment of the Court, we may venture so to consider it, 



528 SPEECHES OF WILLIAM MAXWELL EVARTS 

was in following his strong sense of the supreme importance of re- 
storing the integrity of the currency, and his impatience and despair 
at the feebleness of the political departments of the Government 
in that direction, to the point of concluding that the final wisdom 
of this great question, — inter apices juris, as well as of the highest 
reasons of state — was to deny to the brief exigency of war, what was 
so dangerous to the permanent necessities of peace. But a larger 
reason and a wider prudence, as it would seem, favor the prevailing 
judgment, which refused to cripple the permanent faculties of 
Government for the unforeseen duties of the future, and drew back 
the Court from the perilous edge of law-making, which, overpassed, 
nmst react to cripple, in turn, the essential judicial power. The 
past, thus, was not discredited, nor the future disabled." 

ARGUMENT 

If the Court flease: At the last term of this Court, in two 
cases w^hich had been argued before it, and, doubtless, ably 
and thoroughly argued, to which the United States was not 
a party, and which were held under advisement by the Court, 
your Honors were pleased to direct a re-argument as between 
the parties, and also to extend a leave to the Attorney Gen- 
eral to be heard on the part of the United States. This 
permissive invitation of the Court — 

The Chief Justice: It is proper to be said that the 
Government asked to be heard. Your predecessor, Mr. 
Stanbery appeared in Court with a letter from the Secretary 
of the Treasury, asking that the Government might be 
heard through its Attorney General on these questions. 

Mr. Evarts: I was proceeding, if your Honors please, 
to state as much. The re-argument, as I understand, was 
ordered by the Court, at least, that is the effect of the 
order. I am not advised of the motives of the Court in 
making the order. 

This permissive invitation to the law" officer of the Govern- 
ment to be heard in the causes was understood to be founded 
upon a representation that the public interests involved 



LEGAL TENDER CASE 529 

were such as were regarded by the executive department as 
proper to be presented in behalf of the Government to the 
consideration of the Court. 

Now, this permission to the Attorney General must be 
understood, of course, to extend only to the public question 
that is involved and upon unfolding the records of this con- 
troversy between these private parties, it is discovered that 
the public question, involved in the discussion of their rights, 
is the constitutionality and construction of a certain act of 
Congress — the act of February 25, 1862. The point in 
which that act comes to touch these private interests in 
controversy, and thus to be involved in the forensic discus- 
sion and the judicial decision of these private controversies, 
has to do with that portion of the act which imparts to a 
certain class of the public securities of the United States, in 
favor of the public creditor, the function or usefulness of 
service as money in the payment of private debts, at the will 
of the debtor. This faculty in favor of the public securities 
and the public credit, is imparted by that clause which 
provides that they shall be lawful money and a legal tender 
for all private debts within the United States. 

In these private litigations to which I have referred, and 
in consequence of which the question is now to be discussed 
in the public interests, rights were alleged on the one side, 
and opposed on the other, which depended for their support 
upon the validity of this act of Congress. Now, in this dis- 
cussion which I shall undertake, I shall not be unobservant 
of the posture of this question. It is not an original inquiry 
before your Honors, that is now being instituted. I enter a 
field in which the harvest has already been reaped by the 
sharp sickles of the lawyers, and has been bound into sheaves 
in the judgments of the subordinate courts. I am, there- 
fore, not to treat it except so far as I may in aid of what light 
has already been shed upon the subject. Besides the con- 
fidence in the investigations of the bar which have preceded 

36 



530 SPEECHES OF WILLIAM MAXWELL EVARTS 

me in this question, more than in almost any other, which is 
yet to be passed upon by the highest tribunal of the land, 
we have the most extensive, the most satisfactory, the most 
fruitful, the most elaborate judicial examinations, on the 
one side and on the other of this controversy, in the judg- 
ments of some of the ablest and most distinguished State 
Courts in the country. I think no one can hesitate to say 
that, in the judgments of the Court of the State of New York, 
of Pennsylvania, and of Kentucky, in each one there being 
divided and dissenting opinions, there has been, under the 
responsibility of judicial and impartial investigation and 
discussion, as thorough, as learned, and as faithful an 
examination of the topics that must be passed upon by this 
Court, as it lies in the resources of the intellect of man to 
furnish. 

Now, that we may not argue too much on generalities, 
when the subject is so inviting to general discussions both of 
economy and of political power, and that we may under- 
stand precisely the action of this Government that is brought 
in question before this Court, thus invoking its highest 
function to be applied, in its reason and judgment, to cor- 
rect the power of the country if it has erred, let us inquire 
what it is that this act of the political authority of the 
United States supported by an immense majority of the 
Representatives of the people in the lower House, passed by 
a vote of thirty to seven in the Senate, and approved by the 
Executive of the United States, has undertaken to do, and 
in what right or claim of the public interests and duty, it 
has sought to perform the office of good government, accord- 
ing to its terms, over the people of this country. 

The act is entitled "An Act to authorize the Issue of 
United States Notes, and for the Redemption or Funding 
thereof, and for Funding the Floating Debt of the United 
States." It is, then, a measure, in its title and in its subject, 
of the largest connection and importance with regard to the 



LEGAL TENDER CASE 531 

public credit, the public resources, the means, and agencies 
and powers of Government. 

Its operative section only, as the main feature and inci- 
dent in the enactment, present to the notice of the Court 
and of the nation this particular provision, which is supposed 
to militate against the guaranties of the Constitution, against 
the private rights of the citizen. It is a provision that there 
may be issued "on the credit of the United States, one 
hundred and fifty millions of dollars of United States notes, 
not bearing interest, payable to bearer at the Treasury of 
the United States" and of convenient denominations; and 
then this value, this service, this support to currency, is 
imparted to this form of the public debt: "such notes herein 
authorized shall be receivable in payment of all taxes, in- 
ternal duties, excises, debts and demands of every kind due 
to the United States, except duties on imports." 

The Government thus spreads them among the people as 
being, not only evidence of its debt to them, but as accept- 
able in discharge of their debts to it — "of all claims and 
demands against the United States, of every kind whatso- 
ever, except for interest upon bonds and notes which shall 
be paid in coin." It professes to say to the subjects of the 
Government, "this form of our indebtedness to you shall 
be received by you in liquidation, or settlement and dis- 
charge, of all other forms of our indebtedness to you, except 
our debts in the shape of bonds and notes, which shall be 
payable in coin." 

Then it is also provided that they shall be "lawful money 
and a legal tender in payment of all debts, public and private, 
within the United States, except duties on imports and inter- 
est as aforesaid." — a tender for all debts which the Govern- 
ment owes the citizen, and all debts that the citizen owes 
the public, the Government. 

In this financial arrangement })roposed by the act is this 
further feature, by which as I shall submit to the Court, 



532 SPEECHES OF WILLIAM ^IAX^^^:LL EVARTS 

the Government undertakes to deal on its part, with one 
side of the obligation, and with the citizens as a mass on the 
other. It is provided that as among the citizens these 
notes shall have the same virtue and faculty of liquidating 
debts among them. So that, finally, all the authority for 
the payment of debts shall end in securing to the parties 
the possession of this credit of the Government, issued in 
this form; and the Government professes, and, in fact, is 
held for, the payment finally, in the liquidation as between 
Government and the people, of these securities in coin. 

But the scope and purpose of the financial arrangement 
does not end here; for it is provided that any holder of these 
notes to the amount of fifty dollars or any multiple of fifty, 
may present them to the Treasurer of the United States, 
and by an arrangement to facilitate the transaction, they 
are entitled to receive bonds of the United States with inter- 
est payable semi-annually at six per cent per annum, re- 
deemable at certain dates. "Such United States notes shall 
be received the same as coin, at their par value, in payment 
for any loans that may be hereafter sold or negotiated by the 
Secretary of the Treasury, and may be re-issued from time 
to time as the exigencies of the public interests shall require." 

As I understand it, of all that this act undertakes to ac- 
complish in the financial obligations of the Government to 
the people and of the people to the Government, there is no 
feature of it, the constitutionality of which is brought in 
doubt, except the single and peculiar vigor, imparted to 
these securities, of service in the liquidation between debtor 
and creditor in private transactions, as money. All the 
judicial opinions, all the forensic disputations, agree that, 
although these notes do come distinctly up to the description 
defined by a phrase, in our early constitutional period, of 
"bills of credit," and although the Constitution contains no 
express authority to emit bills of credit, although this act 
purports,! not only to give these notes currency in dis- 



LEGAL TENDER CASE 533 

charge of all obligations to the Government, except duties 
on imports, but also compulsory power to liquidate, and to 
settle and discharge, in a certain sense, all obligations of the 
Government to the citizens ; yet, all that is constitutional. It 
is within the authority of Congress, within the power of this 
Government, and the question of appropriateness or of 
adaptation or of wisdom, in these financial arrangements, up 
to this point, is not open to any judicial disputation upon 
any reason that can be found in the Constitution of the 
United States. 

There, then, remains for consideration only this point, 
and it is much narrower than the discussion of whether the 
Government of the United States has plenary authority 
over the subject of legal tender in the United States, or 
plenary authority over the question of money in the TJnited 
States; it is not at all a question whether the United States 
Government can make, on its own motive and for its own sake, 
tobacco or cotton a legal tender; it is not a question whether, 
upon its own motive and for its own sake, it can provide for 
any arrangement of money, except the most restricted one 
contemplated by the Constitution in any construction that 
has been pretended; it is a quesiton whether, in dealing 
with the public debt and the public taxes, the public re- 
sources of income and the public sources of expenditure — 
whether, in grasping within its comprehension the whole 
sphere of its duties and of the obligations of the citizen, in 
reference to the financial authority, means, and adminis- 
tration of the Federal Government, they can interpose be- 
tween this issue — this form of credit — and this final pay- 
ment in gold that is to result according to the promise, — 
whether they can interpose this expedient for sustaining 
that credit, between the points of the issue and of the final 
redemption and satisfaction; and distribute the equality of 
the burden, which the necessities of the Government require 
to be borne somewhere, between these points of issue and of 



534 SPEECHES OF WILLIAM INIAXWTLL EVARTS 

redemption, by this transfusion and impartial distribution 
throughout the mass of the community, and in the trans- 
action of private debt and credit. 

Now, if the Court please, it will be seen at the outset, 
that this subject has the closest connection with the subject 
of money, and with that feature in the subject of money 
which relates to its being a compulsory legal tender in 
liquidation of debt. 

My first proposition, then, is that to determine what shall 
be the money of a country, and how it shall serve its purposes as 
a measure of value and a medium of exchange, including its 
efficacy as a legal tender in satisfaction of debts, belongs to 
government. So, too, to determine whether anything besides 
money shall be a legal tender in satisfaction of debts among its 
subjects or citizens belongs to government; for, to determine 
that tobacco or cotton shall serve as a legal tender under the 
authority of government, does not make it the money of 
the Government necessarily. It is a provision, in terms and 
in substance, that something besides money shall, under 
some emergency and special motive to justify it, answer the 
purposes of money. Now, I do not imagine that any phi- 
losopher or statesman or politician would ever think of 
holding that this subject of the determination of what should 
be the money of a country, or how it should perform it', 
services in respect to legal tender or otherwise, possibly 
belonged to that domain of private rights which should be 
withdrawn from all government. It is not a matter which 
touches our relations, which are deeper and higher than those 
of government. It does not affect the relations between 
man and God, nor the questions of personal liberty or of 
inalienable rights, or in any manner touch what philosophers 
and moralists and statesmen consider should, in the advance 
of society, be more and more largely withdrawn from the 
domain of government, as liberty of conscience and liberty 
of speech, and the right to property, to life, and to the pur- 



LEGAL TENDER CASE 535 

suit of happiness. This is social, this is pubHc, this is gov- 
ernmental; this is wholly circumstantial, wholly modal; 
and if there is anything that a community in coming to- 
gether submit to the regulation of a common authority, it is 
this establishment of money, and this regulation of legal 
tender. 

So, too, I submit to the Court, that the actual regulation 
of money and of legal tender in satisfaction of debts, is 
neither a principal nor a substantive power of government. 
It is a subordinate and administrative means, in aid of, in 
connection with, some principal and substantive end and 
duty of government. It has been employed, for its own 
sake, upon its own motives only, but always as a means, as 
a method, as a contrivance, for accomplishing some general 
duty, some general obligation. And I submit that the whole 
judgment to be passed upon the regulations by any govern- 
ment of this subject of the discharge of debt through the 
medium of money or whatever else shall be established as 
legal tender to that end, must be in reference to the wisdom 
or the justice of the means. 

Now, in saying that, properly, in discussions of polity or 
of government, this matter of the money or of the legal 
tender of a country in the discharge of debts, is not to be 
regarded as a principal end or as a substantive power of gov- 
ernment, but as only a means towards an end, a faculty in 
aid of a power, we are not to be understood as disparaging 
the importance of the subordinate and administrative au- 
thority, or of the limits which morality, which justice, may 
impose upon a government, or of the importance to the 
people of some adequate guaranties for the establishment 
and regulation of this means to an end, of this aid in execu- 
tion of a power necessary to the public interests and the 
general welfare. 

I have attempted to secure your Honors' assent to the 
general introductory proposition, that, in its own nature. 



536 SPEECHES OF WILLIAM MAXWELL EVARTS 

the regulation of the legal tender of the country was in the 
power of its government, and it was neither an end nor 
characteristic of government in any political or philosophical 
or public sense; but that it was an administrative and sub- 
ordinate means at the service of government for the execu- 
tion of some of its powers and some of its duties. 

The learned counsel who argued against the constitu- 
tionality of this law, Mr. Potter, of New York, and attracted 
the attention of all of us to the force and dignity of his ob- 
servations upon the general as well as upon the special 
considerations of the case, was disposed to question this in 
that form of criticism which has been often insisted upon, 
namely, that this is not an inherent power of sovereignty. 
These are general terms, — inherent poiver of sovereignty. 
He then proceeds to say that it is not an inference that it 
belongs inherently to government because governments 
(and this he admits) have always possessed it. 

It seems to me, when you admit that in the experience of 
human affairs, in the arrangement of what belongs to the 
Government, and what to personal rights not to be sub- 
jected to government, this power of regulation of tender has 
always been in the possession of government, you admit 
almost all that is necessary to show that, in its nature, it 
belongs to government. But being still more specific, he 
says that it may be reserved to the people. It may be 
reserved from government, it may be denied and prohibited 
to government; but if it should be, then it is obliterated 
from the functions of society. Because, to say that the 
individual possesses the power of regulating the legal tender 
for the community or the power to have the legal tender con- 
form to what suits his conscience and his interests, is simply 
to say that there shall be no legal tender at all; for it is by 
its compulsory feature of authority and of law, imposed by 
the consent of the community within which it prevails, 
that it comes to be legal tender, which authority is expressed 



LEGAL TENDER CASE 537 

and enforced by that representation to which tliey commit 
what belongs to their common consent, that is, to government. 

Let us not, then, confound this step of the argument wliicli 
is to show that this power, this faculty, this means, this con- 
trivance, subordinate and administrative, whicli always 
has been, and of necessity always must be, in the service of 
the government for its general purposes, — does belong to 
government in its very nature, with a subsequent ste]). 
which is to show that it has not been withheld by the peoi)I(^ 
from the Government and thus obliterated from its functions, 
and has not been denied in the principal and organic law of 
our Government, the Constitution, so as to be no longer open 
to this particular, subordinate legislation concerning it 
which has been attempted. Both of these features might 
be found in any government established by man ui)on the 
consent of the governed, one that legal tender was with- 
drawn from governmental control, and the institution, 
therefore, no longer at the service of Government, and in the 
organic law itself, the Constitution itself, it had been estab- 
lished by positive enactment and within restricted and 
definite rules and laws of prescription which terminated the 
action of Government on the subject. 

If it be, then, in the very nature of this subject, that the 
regulation of legal tender is a means and appliance of gov- 
ernment, that it is impossible to range it within the personal 
rights and immunities which are withdrawn from all govern- 
ment and not left to the control of the consenting will of 
the people, the only question left for us then to determine, 
is, whether, in our Government, this authority to the extent 
and in the form and effect with which it has been attempted 
to be exercised in the act of Congress in question is within 
the permissive authority of Congress accorded by the Con- 
stitution. Now, this exercise of power by Congress may 
exceed its true authority under our complex system «»l' 
government, for one of three reasons: 



538 SPEECHES OF WILLIAM MAXWELL EVARTS 

First, for the reason that the whole power is accorded by 
the Constitution to the States, and therefore any interven- 
tion by the Federal Government in regulating legal tender 
is beyond the powers conferred by the Constitution. 

Second, because, though a certain measure of power over 
the subject is accorded to the Federal Government, this 
particular exercise of it, is beyond that permissive power. 

Third, because this exercise of it, though within the per- 
missive powers conferred upon Congress as a means to their 
execution, and, but for the prohibition, supported by due 
constitutional authority, is found to be prohibited by some 
express injunction of the Constitution. 

I submit to the Court that, upon the established rules of 
constitutional construction, in dividing powers and in as- 
signing or accepting means towards powers, familiar to the 
Court, it must be for one or other of these reasons, if at all, 
that, this exercise of authority attempted in this act con- 
cerning a subject which belongs to the sphere of government, 
is unconstitutional. Now, I submit that this exercise of 
authority by Congress is no encroachment upon any con- 
stitutional power of the States concerning the subject of 
legal tender. Whether or not it be withheld from the Fed- 
eral Government, whether or not it be prohibited to the 
Federal Government, its exercise is no encroachment upon 
any authority concerning the subject that is reserved to the 
State Governments. It must pass out of the domain of all 
government, if it does not exist in the Federal Government 
and is not to be found in the State governments. 

The principal argument in support of the pretension that 
the regulation of legal tender falls of itself, without regard 
to particular provisions in the Constitution on the subject, 
within the domain of State authority, is, that it has to do 
with, and is at the service of, the government that has 
charge of the general mass of personal, domestic rights and 
interests, which belong confessedly to the administration 



LEGAL TENDER CASE 539 

of the State governments; that, in the contracts of the people, 
the relations of debtor and creditor, and the enforcement 
of the laws for the collection of debts, fixing the standard at 
which debts are to be measured when pursued at law, and 
when the authority of the government is to be exercised 
for their compulsory collection, it belongs to the State 
governments. 

Now, at the outset, let us say that this presumption en- 
tirely fails of due support in the nature and reason of the 
case, in regard to all that mass of personal rights and inter- 
ests that, in the very frame of the Federal Constitution, and 
at the bottom of the motive which led to its formation, were 
to be withdrawn from absolute State control. I refer to all 
those private interests and relations as they arise between 
citizens of different States, and as they arise between citizens 
of the United States and foreigners. So far, then, as it 
seems appurtenant to the administration of private rights 
and interests, there is no presumption that the regulation of 
legal tender in the settlement of transactions between citi- 
zens of different States, or citizens of the United States and 
foreigners, should be accorded to the State governments. 
The presumption is all the other way — that the final deter- 
mination of these rights and interests by the impartiality of 
the General Government, should draw into the Federal 
authority a control over the State tribunals and the State 
laws, in regulating commerce by statute, as well as by judi- 
cial decision, between the States and with foreign nations. 

But that presumption which, at the outset, is thus divided, 
ceases to have any weight, I submit, in the judicial mind 
when we find that the whole regulation of the money of the 
country, has been deliberately, exclusively, peremptorily 
assigned to the General Government, and that legal tender, 
which, as Mr. Mills says, in his Political Economy, seems to 
be inseparable from the idea of money, should be left, in 
the distribution of powers between the two forms of admin- 



540 SPEECHES OF WILLIAM MAXWELL EVARTS 

istration, to two different and independent authorities, can 
scarcely be predicable of any rational scheme of govern- 
ment. Show me, in the arrangements between domestic 
authority and general control, a deliberate conclusion that 
the money of the country shall be carried oyer to the Federal, 
and not left to the State authorities, and I deduce a presump- 
tion, I respectfully submit, that whatever is to be done by 
law and goyernment concerning legal tender, must by the 
same reasoning, and on the same motives of duty and neces- 
sity, be carried to the General Government. Confessedly, 
then, whatever general authority the States have left with 
them concerning contracts, debts, duties, rights, and inter- 
ests, between citizen and citizen, and the enforcement of 
them by law, so far as all these feel the modifications, the 
influence, the operation of the money power of the country, 
they must feel it as lodged in the General Government. We 
understand, I think, the wisdom of our ancestors in making 
this distribution of authority. We are to make a nation of 
many States as towards the world ; we are to make a nation 
of many States as among the States themselves. We are to 
bring together in bonds that unite, all that belongs to the 
necessary conditions of union; and while we will leave, will 
sedulously leave, all that is of local and domestic administra- 
tion, without interfering with what must properly belong to 
the concerns they have in common, we w411, nevertheless, as 
sedulously and as firmly, insist in grouping under the powers 
of the Federal Government all that should subtend the 
entire area of the Union. While, therefore, they have the 
arrangement of their courts and laws, of their process and 
their methods of proceeding, yet the subject of the solution 
of debt by money, we hold as appurtenant to the interests 
which bring them into one union, — that therefore the Gen- 
eral Government must control it. 

Now, has not Congress — has not the Federal Govern- 
ment — the whole power over the money of this country? I 



LEGAL TENDER CASE 541 

am not now arguing that it has the plenary power that may 
be assigned to sovereignty theoretically, that it is not curbed. 
But has it not all the power that there is? Have the States 
any power? "Congress shall have power to coin money, 
regulate the value thereof and of foreign coin." "To pro- 
vide for the punishment of counterfeiting the securities and 
current coin of the United States." "No State shall coin 
money; emit bills of credit." 

Now, if the constitutional money of the country is that 
which, in its nature, is susceptible of coinage, if that is all 
the money that there may lawfully be in this country, which 
is one part of the assumption of those who oppose the con- 
stitutionality of this law, then confessedly the Federal 
Government has the complete control over the subject. 
Whatever laws, therefore, may be made for the collection of 
debt by the different States, however feeble or vigorous their 
processes may be, when the obligation reaches the point of 
debt measured in money, it is measured in the money of the 
Federal Union. 

But more closely than this, though, as I say, we must, 
almost by a necessary presumption, hold that, if the power 
of legal tender is not suppressed and is not modified or curbed 
by positive provision in the Constitution, all that there is of 
it must be in the Federal Government from the fact that the 
money power is wholly in it, yet we see that the subject of 
legal tender, to avoid any controversy on the subject, has 
been, as I shall submit, wholly taken away from the States. 

Now, the express prohibition upon the States is in a form 
which carries an implication, I agree, that they may have 
some authority on the subject of legal tender — an im])lica- 
tion, which, if it stood alone, would need to be observed as a 
substantial faculty in the State governments — namely, 
that they have some control on the subject. It reads, "No 
State shall make anything but gold and silver coin a tender 
in payment of debts." 



542 SPEECHES OF WILLIAM MAXWTLL EVARTS 

There might have been a prohibition in the Constitution 
that no State should make any law regarding legal tender. 
But that, if the Court please, would have carried the pro- 
hibition into a region where it should not reach ; for it would 
have covered the laws as to the time and manner and mode 
and circumstances in which a tender, to be effectual in 
judicial cognizance, should be accomplished, with which we 
have nothing to do; for instance, that it should be in the 
presence of witnesses, that it should be with so many days 
notice, or any other minor arrangements that properly 
belong to the administration of local justice. Therefore, 
this prohibition having only the object of securing the State 
against the interference from what should be the subject of 
legal tender, so far as they were concerned, their authority 
took this form: "No state shall make anything but gold 
and silver coin a tender in payment of debts." But this 
implication, that the State may have something to say in its 
legislation concerning the legal tender, provided it be kept 
within gold and silver coin, is manifestly controlled from 
any diversity or contradiction in its legislation as to the 
legal tender which gold and silver coin shall serve, by the 
prescription in the affirmative authority in the General 
Government, of the whole regulation of gold and silver coin. 
Regulation both of its production by coinage and of its 
value as legal tender, is the regulation that is designed by 
this ascription of authority to the Federal Government. 

It is, therefore, impossible to place your finger upon a 
single authority left in the States, to decry or to exalt any 
form of the legal money of the United States, or to pre cribe 
a rule or manner in which the coinage of the Ignited States 
or the foreign coinage regulated by the United States, shall 
serve as a tender, otherwise than as according to the regu- 
lation and the coinage which the Federal Government shall 
have established. 

I submit that this argument which will be found running 



LEGAL TENDER CASE 543 

through these cases that, without an act of Congress, in 
terms undertaking to say that a certain amount of gold 
bulHon pressed into the shape of an eagle, having the image 
and superscription of our Government's authority, shall be 
a legal tender at its face, without any such express assign- 
ment of efficacy to it when it is coined into eagles, — that it 
is when coined into eagles— this value of bullion— ten dol- 
lars — made a legal tender all over the United States wherever 
ten dollars is the measure of obligation. And if this author- 
ity is exercised only in this form and to this extent of coin- 
age and regulation of value for gold and then for silver by 
the Federal Government, may I be told that a State has a 
right to say that the gold dollars, the gold eagles, to which 
you have assigned this value, shall not be a legal tender, and 
that the silver dollars only shall? Is not that decrying the 
regulation and the money regulated by the Federal Govern- 
ment, if the gold eagles are proscribed from service as a 
measure of debt? Any implication, therefore, that, in the 
States, there is left any authority to legislate concerning 
legal tender in regard to the weight or value, or efficacy or 
preference of gold or silver coins, either foreign or of our 
Federal coinage, is wholly illusory. The prohibition to the 
States does, by implication, give authority concerning the 
form and circumstances of law regulating tender, as respects 
the time of day at which it may be made, the presence of 
witnesses, the presence of the coin, the substitute of paper 
money as adequate, if no demand is made by the creditor 
that the coin shall be produced, and other regulations of 
that kind. But of all that relates to the measure and effi- 
cacy of gold and silver in the payment of debts in any State 
of the Union, the Federal Constitution by the prohibition on 
the States to make anything but gold and silver coin as 
tender, and by the ascription to the Federal Government 
of the whole regulation of the gold and silver coin of the 
country, has left nothing in the States. 



544 SPEECHES OF WTLLIAM MAXWELL EVARTS 

And this, if the Court please, is precisely what, a priori, 
we should have expected. Certainly you are not to have 
two governmental regulations in this country about legal 
tender. If you have two, and one of these is capable of 
being diversified into varieties of policy by forty different 
States, what have you accomplished in assigning the 
money power to the Federal Government? What have you 
done in giving Congress the control over commerce between 
the States and with foreign nations, if this first implement 
of traffic, money, the measure of value and medium of ex- 
change, is not capable of regulation by Congress? It falls 
within the general policy, therefore, that what could not be 
left to diversity of legislation must be lodged where unity 
could have dominion. 

I may be permitted to refer, as a very brief indication 
that this was the effect, and this the motive, of the provision 
on this subject in the Federal Constitution, to a short pas- 
sage in a letter of the Connecticut delegates to that State, 
commending the Federal Constitution to it for adoption. 
Thev were Mr. Sherman and Mr. Ellsworth. It is quoted 
on page 9 of my brief, as follows: "The restraint on the 
legislatures of the several States, respecting emitting bills 
of credit, making anything but money a tender in payment 
of debts, or impairing the obligation of contracts by ex post 
facto law, was thought necessary as a security to commerce in 
which the interest of foreigners, as well as of the citizens of 
different States, may be affected." 

It was, then, within that motive which carried a large 
body of principal powers, and of necessary means in execu- 
tion of those powers, to the Federal Government that this 
provision was incorporated in the Constitution, and the 
rigor with which, in the consideration of the subject when 
framing the Constitution, all possible authority, even with 
the consent of Congress, was withheld from the States, is 
shown by the course of the debates. As it stood in the 



LEGAL TENDER CASE 545 

report of the "Committee on Detail," the provision was 
this: "No State, ivitJiont the consent of the legislature of the 
United States, shall emit bills of credit, or make anything 
but specie a tender in payment of debts." But this was 
rejected under the peremptory motive, that what belonged 
to the Federal Government should not be yielded tem])ora- 
rily, under any possible consideration, to the dominion of a 
State. 

Having thus disposed of any scintilla of governmental 
power on the subject of legal tender, m the value and in the 
substance to be used, being lodged in the States, it is neces- 
sary now to see whether there are any positive prohibitions 
upon the Federal Government defining, limiting, curbing, 
its authority on the subject. And I am sure I need not argue 
in support of this proposition, that the Constitution con- 
tains no word of prohibition, of limitation, or of exception 
touching either of these questions. 

First, the regulation of tender in payment of debts. It 
would have been very easy to have included in the Constitu- 
tion an absolute prohibition or a modifying authority and 
restrictive power; but there is not one word of prohibition, 
of limitation or of exception in regulation of this means and 
appliance of government, to wit, legal tender, to be found 
in the Federal Constitution. 

Second, there is not one word of prohil)ition, limitation, or 
exception, in regulation of money, its currency, and its 
efficacy in the payment of debts. There may be a limit ;i- 
tion as to what money is or may be; but there is none aflixed 
to this affirmative authority concerning it. 

Third, it is equally true that there are no such words of 
restriction, limitation, or prohibition, touching the form, 
vehicles, terms, or conditions, in and on which the pul)lic 
credit can be issued by the Government in the performance 
of its constitutional duties or the exercise of its constitutional 
powers — none whatever; no limitation of the amount, no 

37 



546 SPEECHES OF WILLIAM MAXWELL EVARTS 

limitation of the terms, or of the conditions, or of the means, 
to constitute currency, to give credit, and to accomplish 
the objects imperatively demanded to be executed by the 
Government. 

Fourth, there is no such prohibition, limitation or excep- 
tion touching the regulation of contract by the General 
Government, except indeed what would be implied from the 
nature of government, that all its bankrupt laws are to be 
uniform. We have thus far cleared the subject of two impor- 
tant considerations: first, the States have no authority in 
the premises; second, the Federal Government, in terms, 
submits to no restriction, no limitation, no prohibition in 
the regulation of this subject. 

Now, I contend, may it please the Court, that these prop- 
ositions alone exclude the conclusion that the Federal 
Government has not authority in the matter of legal tender, 
as inconsistent with all estabhshed rules of constitutional 
construction. The general notion of our Government is 
this: that, as between the Federal Government and the 
States, the Constitution is to divide the powers of govern- 
ment as the welfare of the people has suggested to the wisdom 
of its framers; that what the States should not retain or 
possess, the General Government should have; that what 
the General Government does not have, the States should 
possess. Then there is another fundamental, perfectly 
intelligible idea running through, not only our Constitution 
but the constitution of every free people or of every people 
advancing to freedom, and that is, that a certain area of 
personal rights and personal immunities shall be withheld 
from all government and left to the individual, independent: 
rights of conscience, freedom of speech, freedom of the press, 
which has come to be added as another form of freedom of 
speech — all those ideas with which we are so familiar, which, 
in the important stages of the progress of political science 
are not accorded to any government. But, m the original 



LEGAL TENDER CASE 547 

design of the Federal Constitution, it was not thought very- 
important to take notice of this area of individual and per- 
sonal rights, because so long as the General Government took 
only the powers accorded to it, and left the rest to the States, 
it was for the States in their constitution to discriminate 
between what they would regard as properly within the 
service of government and what should be left to the free- 
dom of the citizens. In that way it is explained that the 
original Constitution had scarcely anything that could be 
regarded in the nature of a bill of rights. And although 
contemporaneously, that defect was noticed, and its supply 
promised in some way, should the Constitution be adopted, 
it was not until the amendments were introduced that any- 
thing in the nature of a bill of rights in the Federal Constitu- 
tion was found. That necessity and wisdom, for such I 
regard it, came from this : that, although the original idea of 
leaving the States to discriminate between their powers of 
government and what they would leave to their people, was 
just, yet the very nature of the frame of the Government, of 
limited scope, yet with sovereign powers within that scope, 
carried a possibility and a peril of encroaching, in the exer- 
cise of the powers within that scope, upon the rights of the 
citizen. 

However, it was feared that, although there was no ex- 
press power given to Congress whereby it could make a law 
respecting religion or abridging the freedom of the press, 
yet there might be found in the exercise of the affirmative 
powers accorded to it, a temptation, or a need, in the opin- 
ion of the legislature, to encroach upon this domain of indi- 
vidual rights. It was, consequently, provided, in limita- 
tion of the express powers, that they should not be construed 
to contemplate a possibility of the invasion of this sphere of 
personal rights. But, when we are dealing with a subject 
that has no concern with personal rights, is no part of indi- 
vidual manhood, but is, in its very nature, a regulation 



548 SPEECHES OF WTLLIAIVI MAXA^TLL EVARTS 

framed for society and under its authority, then you have 
this only to consider, whether this power, belonging to 
government, is limited in the Constitution or is assigned to 
the States. 

Now, to hold otherwise is to hold that a certain subordi- 
nate, administrative means, familiar to the experience of all 
government as a part of its financial system, as well as its 
regulation of justice among the citizens, has been expressly 
prohibited to the State governments, has not been added to 
the immunities of the citizens, has not been withheld by any 
express prohibition from the General Government, and yet 
by some insensible, unnoticed evaporation in the process of 
distributing powers between the two Governments, passed 
out of the resources of government altogether. Now, do 
we not all know that, if this exercise of legislative authority, 
which Congress has deemed to be lawful, was needed and 
was useful, and yet was not permitted to the Federal Gov- 
ernment, the State governments could not have given us any 
aid.'* The Constitution prohibited it. It is, then, left out 
of government. 

Now, I submit that the true presumption and implication 
is, that when the prohibition of what belongs to government, 
is applied to the States, it is understood to belong to the 
General Government — I say, what belongs to government, 
what is necessarily a part of government. If that be denied 
to a State, the presumption then arises that it falls within 
the means and appliances that should be at the service of 
the general and common powers of government applied to 
the common interests. There may be a presumption that, 
if the sum of political authority which is necessary and use- 
ful in government has been diminished and curtailed in the 
division of it between the States and the Union, you may 
find more of it on one side or more of it on the other; you may 
have rules of construction, prejudices, theories, that will 
carry more on the one side or more on the other; but there 



LEGAL TENDER CASE 549 

is no presumption that the arm of government is shortened 
by this division of its authority, unless you add it to the 
immunities of the individual. As a matter of direct con- 
stitutional authority, the mode of suppressing a power of 
government, that is, within the ordinary means and ai)i)li- 
ances of government, is by a prohibition to both the Federal 
Government and the State governments. 

Now, I do not by this carry any conclusion or argument 
that principal powers of government go by inference, but 
that what are means and appliances in aid of government 
enure to the service of that government that has the ])rin- 
cipal duty imposed upon it, in the absence of prohibition. 
There are several instances of this double prohibition by 
which there is a suppression of a certain faculty of govern- 
ment. Both the Federal Government and the State gov- 
ernments are prohibited from granting any title of nobility; 
both are prohibited from passing any ex 'post facto law; both 
are prohibited from passing a bill of attainder. All these 
proceed upon the ground that either of these governments, 
within its powers and duties, might have had recourse to 
one or the other or all of these subordinate and administra- 
tive applications of authority: the General Government, in 
support of its duties to build up and strengthen the national 
polity, might claim to make distinctions of rank in the army 
or in the civil service that should have a permanent charac- 
ter; the States, within their dominion, might claim the same 
as a subordinate, ancillary administrative means. So 
with ex post facto laws ; and so with bills of attainder — each 
passing bills of attainder within the sphere of treason per- 
petrated against either government. There you have a 
suppression of certain powers of government which are not 
left in our system at all, just as you have an enlargement of 
the area of personal immunities by provisions afhrmatively 
in the nature of a bill of rights. But our Constitution con- 
tains one instance of this double prohibition of what must 



550 SPEECHES OF WILLIAM MAXWELL EVARTS 

be regarded, in its nature, as a subordinate means. I refer 
to the prohibition of exacting revenues from exports. Now, 
what is more in the nature of a subordinate means than that? 
Apparently that should be at the service of every simple 
government. Under what motive was that prohibition 
made? It was made in view of the difficulties of determin- 
ing whether the States or the National Government should 
control duties on exports. The power was denied to both 
as a source of revenue, with this limitation, that a State may 
lay a duty on exports in support of its inspection laws; but 
the revenue arising therefrom must go into the Treasury 
of the United States. Practically, revenue on exports is 
excluded from the powers of both governments, not by 
inference, but by express prohibition. This was fully under- 
stood during the late Civil War when the propriety and 
necessity of looking to exports for some measure of revenue, 
was considered by Congress, and the express prohibition in 
the Constitution was regarded, as every express prohibition 
should be, as final on the subject. 

The Tenth Amendment of the Constitution seems to 
me, in its just construction, to support this implication from 
the denial of a power to the State governments, that it is 
in its nature subordinate to administration under the general 
power of the Federal Government, that it is with the Gen- 
eral Government; for the language of that amendment was 
intended to be, and justly, a barrier against implications of 
affirmative powers. This is the provision: "The powers 
not delegated to the United States by the Constitution, nor 
prohibited by it to the States are reserved to the States 
respectively, or to the people." 

Of course, then, anything that is prohibited to the States, 
you cannot treat as reserved to the States ; and as to whether 
it is reserved to the people, that primarily is a question be- 
tween the States and their people. If it is wholly withheld 
from the States, it cannot be a question whether the people 
should have it as between them and their State government. 



LEGAL TENDER CASE 551 

Never overlooking the principle that this is a Govern- 
ment of affirmative powers to be found in the Constitution, 
I submit that, under the language of this Tenth Amend- 
ment, a means prohibited to the State is presumptively 
within the authority of the Federal Government or within 
the limits of its principal powers. If, then, whatever regu- 
lation of legal tender is possible in our Government, is with 
the General Government, there are but three ways in which 
it can be disposed of: either the Constitution has fixed it, 
which it might have done; it might have declared in so many 
words, that legal tender in payment of debts, as the supreme 
law of the land, is and shall be current coin authorized by 
the General Government; or, there is no legal control what- 
ever; or. Congress has some authority in the premises, and 
whether that measure of authority be large or small, all of it 
resides in the General Government. 

Now, it is very plain, as I have heretofore stated, that 
there is nothing in the Constitution, in terms, fixing the 
legal tender of the country. If the power to create money 
and fix its value carries any power of legislation, — if the 
other enumerated powers of Congress carry any power of 
legislation, then, as within, and in aid of, those powers. 
Congress has it. We come, then, down to the question, 
whether under the description of legal and necessary legis- 
lation in support of and in execution of the powers of this 
Government, Congress has that power. 

Now, I do not hold that these notes of the Government are 
coined money, or that their issue or authority depends at all 
upon the fact that they are coined money. They are 
promises of the Government; they are debts of the Govern- 
ment. They are expressed in dollars as the measure of the 
Government's debt and promise, and those dollars thus 
named as the measure of the Government's debt and prom- 
ise, are the dollars of the Federal Constitution. A promise 
is not performance, and the dollar is yet to appear if these 



552 SPEECHES OF WILLIAM MAXWELL EVARTS 

promises are redeemed in performance of the promise — and 
the dollar is a coined dollar of the United States or of foreign 
countries accepted by the United States legislation. "The 
United States will pay the bearer ten dollars. Payable at 
the Treasury of the United States in New York." And 
"This note is a legal tender for all debts, public and private, 
except duties on imports and interest on the public debt, and 
is receivable in payment of all loans made to the United 
States." 

As I have said, the issue of that promise is constitutional; 
it is within the authority of Congress to provide for its per- 
formance; it is within the authority of Congress, provided 
no excess of power is resorted to for that purpose, to secure 
its acceptance and currency with the people as a promise of 
the Government to pay dollars. There is this further pro- 
vision, covered by the legislative promise in the section under 
which this currency is issued, that at any time this form of 
the public debt may be converted in sums of fifty dollars or 
multiples of fifty into another form of the public debt — a 
postponed loan — the interest of which is payable in coin and 
the principal in coin. These are the provisions, and all, I 
submit, are constitutional. 

The Government has proceeded to say further and inter- 
mediate to the issue of this form of public debt and its pres- 
entation by the holder for redemption in money or for con- 
version into the postponed loan of the Government, it shall 
pass from hand to hand among the people of this country as 
a satisfaction of their private debts. This is the feature to 
be considered. Now, what are some of the principal pur- 
poses of money? It is a measure of value and also a medium 
of exchange. As a measure of value money may rest in 
account; there may be money of account, which has no coin 
to represent it, but which serves the purpose of a measure of 
value in computation; so that a bale of cotton or a cask of 
wine which you cannot in their material bulk make a common 



LEGAL TENDER CASE 553 

measure of value, yet being worth so many jDounds and shill- 
ings may be deemed sufficient in account. As a medium of 
exchange, which is the purchasing power of money, the great 
science of money is that it should retain this purchasing 
power in the confidence of the community, and provided 
that permanent confidence at a fixed standard can be se- 
cured in favor of any money, the less the intrinsic value of 
wealth that is put into money, the better for all. Tlie gold 
money, the silver coin, is, as Mr. Mill, in his Political Econ- 
omy, says, but a form of tickets or orders by which the holder 
is authorized to obtain whatever he needs, and the confi- 
dence that these tickets and orders will, under all circum- 
stances, obtain what he needs, is the value of the contrivance 
of money as adopted by civilized nations; and, as he adds, 
aside from this, and he is no partisan of paper money, he 
abhors inconvertible paper money as much as any one can 
do, — as a contrivance merely to adjust these relations, 
money, he says, is the most insignificant thing in the world. 
The intrinsic value of metallic money serves only this 
purpose: there is this self-acting check against its excessive 
use, that no more of it can be issued than there is, and none 
of it can be got except by labor, which makes it a standard 
of value. It is that self-acting check which makes the 
metallic money the basis of circulation, to which the whole 
currency of every safe and just government should be an- 
chored. But, as we all know, political science has shown 
that, because vou must have your currency anchored to this 

7 t/ ».' «■■■ 

natural and self-limited measure of value and medium of 
exchange, it does not follow that you must limit the service 
of exchange and of measure of value to that money, and have 
only the transactions to which the specie of the country may 
be applied bodily and by transportation in every transaction. 
Whenever you can give to forms of public or private credit 
the true hope and guarantee that they shall bring all the 
money that they purport to represent, then you have en- 



554 SPEECHES OF WILLIAM MAXWELL EVARTS 

larged the means and stimulated the activities of commerce 
and of trade without having shaken the basis of specie as a 
measure and as a medium. The distinction, therefore, be- 
tween currency and money is perfectly understood; bills of 
exchange being the first form of currency distinct from 
money, then promissory notes, then public emissions of 
promises of Government, then private bank notes — all being 
different forms of credit or confidence that the money they 
promise shall be forthcoming whenever the holder needs it. 
So that the expression of Mr. Mill is clear, when he says that 
these different forms of credit either in the less manageable 
form of book debts, or bills of exchange or promissory notes, 
are really currency, and in the form of bank notes and of 
public notes of exchequer, are a form of credit which, as it 
seems, he very aptly describes as coined credit, while the 
other forms of credit are, so to speak, credit in the ingot or 
mass, and very aptly describe paper money in its relation 
both to credit or promise and to value or intrinsic faculty of 
purchasing. 

Now, every nation coming into the modern system of civili- 
zation at least and having currency by necessity for the free- 
dom of the movements of its people not limited to gold and 
silver coinage, but to credit mixed with it in all the manifold 
forms that ingenuity and the science of political economy has 
invented and approved, has to deal with that whole subject 
of money per se, and credit that enters into currency in aid of, 
pari passu with, any expansion of the money arrangements of 
the country. It has to deal with it in peace and in war; it 
has to deal with it under circumstances of the greatest di- 
versity. It has to deal with it according to the powers of 
government and its wisdom, under stress financial and na- 
tional. 

When government, therefore is charged with these duties 
and responsibilities, the question is, of any attempted exer- 
cise of authority, whether it be within its power and be serv- 



LEGAL TENDER CASE 555 

iceable to its duty or not, and that question is to be answered 
according to the nature of the exercise, the motive, the serv- 
ice intended, and the circumstances under which it is situ- 
ated, by the Government. Let me now call the attention of 
the Court for a moment to the difference in operation of an 
express power and of an implied power. An express power 
whenever accorded to the Federal Government can be 
exercised upon its own motives and with no other reason or 
object of duty, except that it is within the express power. 
Take the subject of emitting bills of credit which was dis- 
cussed in the Constitutional Convention as to whether it 
should be assigned as a substantive, enumerated power to the 
Government of the United States, and was omitted after full 
consideration from that list. If it had been inserted as an 
express and substantive power, then the issue of bills of 
credit for any purpose would have been within the power of 
the Government, that is so far as their emission went. Their 
motive might have been to ease the finances of the country 
under any circumstances, and in any exercise of any power or 
duty of the Federal Government. It was excluded. Take 
the power of chartering corporations. That was postponed 
as a substantive power by Mr. Pinckney and again by INIr. 
Madison, with certain limitations. This was excluded as a 
substantive power. If it had been included in the Consti- 
tution then Congress could have established corporations in 
its discretion. If that had been inserted as a substantive 
power, then Congress would have had power upon its own 
responsibility of reason and motive, without any judicial 
amenability whatever, to establish corporations of any 
diversity and on any subject. That was excluded. 

How is it, now, about this legal tender question, which is 
specially under consideration.^ These notes, if not made 
legal tender for private debts, yet are an emission of bills of 
credit within the meaning of the Constitution of the United 
States which is prohibited to the States and which is not 



556 SPEECHES OF WILLIAM MAXWELL EVARTS 

expressly conferred on the Federal Government . The two 
cases of Craig vs. the State of Missouri and Brisco vs. The 
Bank of Kentuchj, in 4 Peters & 11 Peters, discussions 
familiar to the Court, show that emissions of public debts 
are bills of credit and would be the very things covered by 
the clause in the Constitution, "emit bills of credit." 

If a State does it, they are invalid, and if the United States 
does it, they may be valid although no express power is given 
them, but, on the contrary, an express power was withheld 
from them in the Constitution, after debate. Here you have 
all the grounds, all the arguments, which bear upon the 
matter of legal tender, on this subject. The incorporation 
of the Bank of the United States was a subject which came 
up for discussion, and with it these facts in constitutional 
history, that there is no express power to establish a bank, 
and that when it was proposed to the convention to confer 
an express power of incorporation, it was withheld. What 
is the reasoning of the Court? As an express or substantive 
power, justifiable upon its own motives and for its own sake, 
it has no place in the Constitution of the United States. 
You must bring it within the terms of means or of legislation 
necessary and proper, within the scope of some express power 
and upon its reason and within its motives, or it does not 
exist. And the incorporation of the Bank of the United 
States was held to be constitutional because under the mo- 
tives and upon the reason and within the limits as means to 
ends, adapted and conducive and appropriate, which are 
within the service of enumerated powers at the disposal of 
the Government. And so bills of credit, if they came up 
nakedly without this question of legal tender and private 
debt, would stand upon the same reasoning and have never 
been questioned as being unconstitutional. 

The difference, therefore, between express and implied 
power, is not an unsubstantial difference, although the very 
thing that might have been raised to the dignity of sub- 



LEGAL TENDER CASE .557 

stantive powers upon its o\\ti motives, has been withheld, 
and the same thing is introduced into legishition as means to 
ends. The difference, I repeat, is essential and imj^ortant, 
and no true liberty of means towards ends, of appliances in 
aid of powers, ever can enlarge the powers of the Constitu- 
tion of the United States; for the judicial and political theory 
of these means and appliances, as being lawful, is that they 
are included in the service and in the aid of the substantive 
powers. 

Now, the authority to make coined money a legal tender 
by law is included within the express power of regulating the 
value of money; and cannot and has not been disputed. It 
is for me to satisfy your Honors, if such be the true construc- 
tion of the Constitution, that the making of these emitted 
bills of credit of the United States a legal tender in trans- 
actions between private parties, is within the authority of 
Congress, as a means necessary and proper, appropriate and 
adapted, to the discharge of the duties thrown upon the 
Government of the United States, by the Constitution and 
in exercise of the powers accorded to it; knowing as we do, 
that unless it resides in the Government of the United States, 
it does not reside in the power of the States, and that the 
political and financial situation in which this recourse, always 
possessed by governments, though denied to ours, is left 
without remedy and without succor. 

Now, I believe that the framers of the Constitution may 
be well understood to have formed their Government for the 
actual affairs of men and the vicissitudes of national fate. 
They did not expect to change the nature of man or to con- 
trol events, and they did not frame a government to escape 
them, but to meet them. They were familiar with the con- 
ditions of peace and war by the most recent experience, and 
thev knew, not as matter of theorv, but as matter of fact, the 
diversity between the burdens and responsibilities and duties 
which belong to one state of the nation and the other, ^^'a^ 



558 SPEECHES OF WILLIAM MAXWELL EVARTS 

is the state of a nation which prosecutes its right by force; 
peace is the state of a nation in which its law prevails by its 
authority. It is not saying too much, that, without impos- 
ing any qualities upon these two conditions of peace and war, 
except what by inexorable necessity is demanded for war, as 
in time of peace all the force of the country is but the aid and 
minister of its law, so in time of war all the law of a country 
is but the aid and minister of its force; it is the situation of 
the nation when its force must be displayed and exercised 
and marshaled and directed only under the conditions that 
it be adequate, proper, and seasonable, to maintain the 
public safety. 

I give to the law of the country no extension beyond what 
its fundamental charter gives it; but, within its power, the 
occasions and duties of a state of war are that the whole 
strength of the nation shall be marshaled by its legislation 
in the most effective and useful way to preserve the national 
existence and to attain peace. The laws by which private 
conduct is governed when the person is safe and life secure, 
are one thing; the laws of self-preservation in the individual 
are another; and one law yields to another in morality 
according to the situation. "Thou shalt not kill" is the law 
of peace and safety to the individual. In preservation of 
life, you may kill, is the doctrine and sanction of conduct 
under those circumstances. Our life is to be preserved, 
that it may be regulated by morality, and the morality of its 
preservation is, that whatever means in strength, in wisdom, 
are at our service, may be exercised according to the stress of 
the emergency in which we are placed. 

I shall give these principles no extravagant operation. I 
agree that the final law of this Government, found in the 
Constitution, is the curb and limit of the political authority 
just as much as the strength which nature has given to man 
is the curl) and limit of his efforts in self-preservation. I 
only ask that you shall accord to the framers of the Consti- 



LEGAL TENDER CASE 559 

tution, in the judgment of their work as appHed to this 
emergency in the national situation, the wisdom and cir- 
cumspection that belong to them, and that is, that they 
deemed a state of war as within the fortunes of the nation 
they were founding, and that they were familiar with the 
stress of war in its demands upon the strength of the nation, 
natural and financial. 

Now, in the main design in the Constitution, to carry to 
the General Government all that was of common concern, 
there is nothing more prominent than this : all that belonged 
to a state of war was and should be of common concern ; in 
peace there was a distribution of administration between the 
General Government and the States, but all the exercise of 
power and strength in war was adopted by the terms of the 
Constitution as being of general concern and not of State 
authority, and was comprehended in that larger reason 
which carried over whatever was general, in the power of the 
Federal Government. 

They had in their minds, also, under the freshest ex- 
perience, as among the consequences of impressions that 
war produces in a nation, that the whole system of money, 
currency and credit, public and private, legal tenders, con- 
tracts and their enforcement, and the compulsory payment 
of debts, are subject to the shock of war as much as any 
other of the interests and operations of a nation, and that the 
pressure upon the powers and duties of the Government in 
the event of war, in respect to all these subjects, was en- 
tirely different from what it was in peace. They were not 
insensible to that fact; they had experienced that very 
situation in the conduct of the Revolutionary War, that 
while the Federal Government was charged under the con- 
federation with the operations of war and their control, it 
had to look to the States for the execution of power to aid it. 
Among the very points, therefore, bearing ujion the exercise 
of the authority of war, this question of legal tender was in 



560 SPEECHES OF WILLIAM MAXWELL EVARTS 

their experience, and in this precise form; that while they 
had authority to pledge the public credit by the emission of 
the public securities, they had not power to make them a 
legal tender, and they had found that that was a necessary 
reinforcement of their currency and their value; that is, in 
their judgment, it was. Whether they judged wisely or not, 
is a political question. In their judgment, they did. They . 
were obliged to ask the States, just as they were, to con- 
tribute by their legislation this aid and help to the credit of 
the country by their passing laws in aid of the emissions of 
the confederation, being legal tender, and the States did it, 
putting it upon the ground, as in the legislation referred to 
by Mr. Potter, of upholding by penal sanctions the currency 
of the money of the confederation, proscribing as an enemy 
to the country any man, who should say or act in derogation 
of this faculty of the money, the emissions of the confedera- 
tion debt, being a legal tender. This then was the experience 
of the framers of the Constitution. That is, of all other 
nations, so of this, as in the past so in the future, the exigen- 
cies of war which demand the marshaling of the whole physi- 
cal strength and all the financial resources of the country in 
aid of the country struggling against foreign or domestic 
foes, there must be a resort to the means of legal tender as 
one of the resources of government; and they knew that in 
the confederacy they had to ask the State, for it, as the 
States had it, and they knew what they were going to do on 
the subject of leaving that authority with the States. 

Now, too, it is not to be disguised that the temptations 
and mischiefs and dangers and disgraces of an inconvertible 
paper currency were equally pressed upon the attention of 
the framers of the Constitution. The actual condition of 
the country in the collapse and in the delirium, if you please, 
that had followed the exhaustmg war in which the liberties 
of the people had been maintained, and all the evils of the 
public and private credit of the country that the actual 



LEGAL TENDER CASE 561 

situation of affairs exhibited, were in their minds also. They 
knew that this potent service of paper money in a need, was 
in danger of being a master too strong to be thrown off, sud- 
denly at least, when the need had reached its limit. 

Now, I say, the most opulent nation, and ours was not an 
opulent nation when the Constitution was formed, that the 
most opulent nations had been obliged under the stress of 
war to resort to this invigoration of the coined credit of the 
country to aid the purchasing power of its public debt. This 
was familiar to them also, and they knew after the war had 
passed, and this means had been resorted to, that in the 
experience of other nations as well as their own, the danger 
of expanding it as a power, or the exercise of the power 
beyond that need, was a thing to be considered, and care- 
fully and firmly dealt with. 

I submit to the Court, therefore, that the true construc- 
tion of the arrangement of these conflicting interests and 
arguments of the Federal Constitution, is plain, and further 
that it was wise, though, whether it be wise or not, if it be 
plain, the judicial duty is satisfied by enforcing it. It is, 
that the States of this country, who were relieved by the new 
Constitution from all the burdens and responsibilities of the 
legislation and management of war, should have no author- 
ity that could make legal tender out of anything but intrinsic 
value. Whatever stress in time of peace may go unprovided 
for, for disasters may happen, earthquakes may happen, great 
destruction by pestilence, by flood, by fire, may disorder the 
natural condition of the people almost as much as war, — but 
the feature of peace was not of that kind or nature, and as 
theStates had none of the powers and responsibilities of legis- 
ation and management for a state of war, this faculty 
should be suppressed in them, although some i)articular un- 
foreseen stress might have shown that a more circumsjK'ct 
and more farsighted civil prudence would have given a 
faculty of meeting this strange emergency. But practically 

38 



562 SPEECHES OF WILLIAM MAX^VELL EVARTS 

thej^ dealt with it in this manner; that the States have no 
power, as we all know, to liberate the legal tender and con- 
form it to any exigencies; but that the General Government, 
whose money and credit — that is all that it is — are to fur- 
nish all the financial sinews of every possible war, should 
have at its disposal in this service, in this necessity and within 
this duty, this financial expedient of making the public 
securities a legal tender; else, what is not to be tolerated in 
any form of society, an inexorable need and a peremptory 
duty should miss a commensurate power. I do not care 
what structure it is, mechanical or civil, if vou send it forth 
to meet an inexorable need and under a peremptory duty, 
you must furnish the necessary power, and in so far as you fail 
to do this, your structure is imperfect and falls under the law 
of its own creation as inadequate to its own obligations and 
necessities. Such structures may be deliberately made, 
such structures, in the imperfection of human affairs, are 
made. A ship may be sent across the ocean for aught I 
know, under a deliberate determination that, if the wind 
blows thirty knots an hour, it shall go to the bottom of its 
own structure. But when I have a list of the specifications 
of the ship's structure and equipment, I want to have 
pointed out to me the limit that made it necessary she should 
be a thirty knots-an-hour gale ship, and not one to meet a sea 
on which she was launched where the wind blows swifter than 
that. So with a government that is launched to keep the 
seas perpetually, over every commotion of the ocean of life, 
and through every storm of the future. I wish when the 
perils are known and measured and foreseen, to have express 
evidence that it should yield rather than resort to some 
energy to save it. If it be so, then let it founder according 
to the predestined law of its creation. 

This power of legal tender, necessary for emergencies, 
pernicious as a ready resource, shall not be placed among the 
enumerated powers of the Constitution, because it would 



LEGAL TENDER CASE 563 

either be at the service of the Government as a financial 
expedient on its ovm. motive and upon any representation 
that it was useful in the service of the community — a posi- 
tion which Mr. Madison came very near taking in his mes- 
sage to Congress when he recommended an emission of bills 
of credit without the legal tender clause, when the credit of 
the country no longer required it, but as a convenience, as a 
medium of exchange. That illustrates the difference. I 
suppose the emission of bills of credit, if an enumerated 
power in the Constitution, would have been within the 
faculties of the General Government upon the motive of 
providing a currency merely without regard to the needs of 
the Government or by aiding it by such an emission. 

I have no doubt. Congress never doubted, that if within 
the implied powers of government, it reposes there as a 
means at its disposal in aid of the credit of the country, upon 
its authority to lay taxes, to raise revenue, and to borrow 
money, and to administer the finances of the country. So, 
too, this power of resort to legal tender, as a servant of 
special duties and of authorities of the General Government, 
I place in the implied fitness and necessity of it as a means 
under emergencies of supporting the power of the Govern- 
ment in performing its duties, within its recognized obliga- 
tion and in aid of its recognized authority. Such, I think, is 
the adjustment in the Constitution of these conflicting 
interests and arguments, and I am at a loss to perceive why 
anything in the history of this country should show, either 
in the general course of the Government or in this last 
emergency, when its safety required all its power, any reason 
to question the wisdom or forecast and prudence of the 
framers of the Constitution, if this be its true construction. 
Under it, certainly, we have had eighty years of government, 
carrying us through peace with all its vicissitudes and through 
the pressure of foreign war without resorting to this as a 
means in aid of any necessity. It is only when we come to a 



564 SPEECHES OF WILLIAM MAXWELL EVARTS 

civil war, the vastness of whose proportion and the intensity 
of whose energy, have crowded within five years, expendi- 
tures from this Government equal to the revenues of fifty, 
years of peace, that this exceptional and excessive expedient 
sj^oken of in the ordinary affairs of the nation, has been 
resorted to. 

Now, it is idle to say, as is often said in the course of the 
argument, that our experience of eighty years of peace, and 
of wars somewhat severe, certainly, upon our financial 
abilities — the War of 1812 and the War with Mexico, for 
instance — have been gone through without a resort to this 
expedient, and that this should prove a reason and be a 
guide in the construction of the Constitution, that no such 
expedient can be resorted to. I submit that it is only when 
some adequate and equal comparison that shows a nation 
saved through a stress and pressure equal to that through 
which we have passed in the last five years, without a resort 
to this expedient, is presented to us, that, in the experience of 
human affairs, we find any justification for thinking that the 
perils in which this country was placed could have been 
passed through without this resort. No simple government 
that the world ever saw, as far as my knowledge or estimate 
of history goes, has ever been able to subdue a revolt cover- 
ing so vast a territory and so large a population of equal 
character and condition with the loyal population who came 
to the aid of the Government, as ours has done. I be- 
lieve that no simple government would be equal to it, and 
that it is to the Federal distribution of authority that made 
loyal States cope with disloyal States through the common 
agency of the Federal Government to which the loyal State 
adhered, that our success is due. 

I am, in the profoundest and extreme doctrine, an admirer 
of the State constitutions, their vigor, energy and jirotection. 
But you might as well say that the sick man argued wisely 
who recounted to his physician that he passed through the 



LEGAL TENDER CASE oG.-) 

diseases of childhood and had never taken calomel as a reason 
under the congestive fever of the marshes, why he should sub- 
mit to no other stronger doses than had saved him from the 
mumps and chickenpox. Necessities impose their on\ti meas- 
ure: diseases their own remedy; and though you may be 
misguided and though the remedj^ uiay be sometimes worse 
than the disease, this false reasoning of refusing to make the 
measure conform to the actual situation before you and sub- 
mitting to the wisdom that must be the master of the dis- 
cretion and the remedy — such reasoning I never can under- 
stand. 

We must now understand, if the Court please, how it is and 
why it is-, that the Federal Government, being charged, as I 
have said, with all the duty and all the responsibility of the 
conduct of the nation in time of war, all such things being 
absolutelv denied to the States as well as affirmatively de- 
volved upon the Federal Government, — how it is that this 
situation of the nation may justify, may necessitate, within 
a national and legal estimate of the adaptation and appro- 
priateness of means to ends, the particular measure which was 
adopted by our Government in the year 1862. I will but 
call attention to the powers I have collected in the 8th propo- 
sition of my brief, as making up the sum of powers as well as 
those distributively accorded, I suppose, to the support of 
this exercise of legislative authority. The Government then 
has power "To lay and collect taxes, duties, imposts, and 
excises, to pay the debts and provide for the common defence 
and general welfare of the United States:" "To borrow 
monev on the credit of the United States"; "To regulate 
commerce with foreign nations and among the several 
States"; "To coin money, regulate the value thereof, and of 
foreign coin"; "To declare war"; "To raise and sui)i)ort 
armies"; "To provide and maintain a navy"; "To pro- 
vide for calling forth the militia to execute the laws of the 
Union, suppress insurrections, and repel invasions"; "To 



566 SPEECHES OF WILLIAM MAXWELL EVARTS 

provide for organizing, arming, and disciplining the militia 
and for governing such part of them as may be employed in 
the service of the United States"; To guarantee republican 
governments to the States and protect them against invasion 
and domestic violence. 

I Avill not draw attention to the inhibitions upon the 
States to engage in war or keep the means of war. A war as 
between themselves was, of course, denied to them in the 
very nature of the institution of a common government; a 
war against foreign nations was denied to them as belonging 
to the General Government to regulate all the relations and 
to determine upon the condition of peace and war, ad extra. 
Here, then, you have collected in this mass of powers all the 
duties, all the authorities, all the responsibilities both in re- 
gard to military operations and array, and to financial man- 
agement, that any nation ever had. 

I do not now discuss the distribution between executive and 
legislative power in the Government of the United States. I 
say that, as between the General Government and the States, 
and as between the General Government and foreign nations, 
all the powers, all the duties, all the obligations, that any 
nation ever had or could have, are deposited with the General 
Government. Again, by an express provision in the Con- 
stitution as well as by necessary intendment, all the legisla- 
tion that is necessary and appropriate to the performance of 
those duties, the exercise of those powers, the discharge of 
those responsibilities, and the crowning end of all, the safety 
of the nation, should belong and does belong to the General 
Government. So far we must all agree. 

Now, the judicial criterion of the appropriateness and the 
adaptation of means or of legislation to ends, and in support 
of the powers and duties of the Government I need not en- 
large upon. It is not apolitical criterion; it is not a criterion 
of wisdom or distinction. It is but a judicial criterion — that 
so long as we treat our Constitution as a Constitution of 



LEGAL TENDER CASE 567 

limited authority, subject to judicial interpretation and to 
judicial curb of all violations of it, it must be guarded and 
must be bravely and firmly administered by this Court; 
but not beyond the judicial criterion as laid down by the 
celebrated Chief Justice who framed so much of the opera- 
tive power of our Constitution in his elucidation of its prin- 
ciples and wisdom, and of its methods. This rule acceptable 
to all for its intrinsic and perfect reason, has been established : 
"The sound construction of the Constitution must allow to 
the national legislature that discretion with respect to the 
means by which the powers it confers are to be carried into 
execution, which will enable that body to perform the high 
duties assigned to it in the manner most beneficial to the 
people." 

Let us look at that rule, as it contemplates a state of war, 
the duty of the General Government in time of war, and the 
powers assigned to it in discharge of those duties. "There 
must be the means which will enable Congress to perform 
the high duties assigned to it in the manner most beneficial 
to the people"; not that it may use such means as barely to 
accomplish the object, but to use them in a manner, to be 
most beneficial to the people. Again, "Let the end be legiti- 
mate, let it be within the scope of the Constitution and all 
the means which are appropriate, which are plainly adapted 
to the end; which are not prohibited, but consist with the 
letter and spirit of the Constitution, are constitutional." 
Under that the Bank of the United States was sustained 
in time of peace; under that the embargo was sustained in 
time of war. Under that in the case of the United States vs. 
Fisher, in 2 Cranch, the duty of the General Government to 
pay its debts, was held to sanction legislation, that what was 
owed to the Government should have priority in payment 
over other creditors in cases of insolvency. Look at that for 
a moment. The duty of the Government is to pay the debts 
of the Union. It must, then, have the means of raising 



568 SPEECHES OF WILLIAM MAXWELL EVARTS 

revenue for that purpose; it must have the power to buy, as 
in that case it did, a bill of exchange for the transmission of 
funds, and when the debtor on the bill of exchange failed, it 
had a right to say that the Government of the United States 
should be paid out of his assests before any other creditor 
was paid. That is the power over obligations which the 
Government has in collection of its debts, from the fact that, 
having occasion and duty to pay the debts of the Govern- 
ment it needs financial expedients and methods, as bills of 
exchange and other forms of contingent liability. It, there- 
fore, shall have the power to assert its right over other cred- 
itors, against all legislation of the States governing these 
general heads of private rights. 

Looking at the largeness and appropriateness of adapta- 
tion covered by that decision — appropriateness might be 
narrowed down to raising revenue to pay the debts, and 
appropriateness of adaptation might be held not to require 
anything more than the money in the Treasury and having 
it transmitted by messengers. But no; all the ordinary 
expedients by which this duty is to be performed of paying 
debts, and so of deriving the means to pay debts, admits of 
such general guaranteeing legislation of safety over the 
Government's funds, as, in the case of failure of a debtor, 
shall place the Government's claim on a different footing 
from that of the States themselves and of their citizens. 

Now, who shall say that this making of the Government's 
promises a legal tender in the temporary services of the 
finance of the country, is not an appropriate means to in- 
vigorate the resources of the country in time of war.? How 
do we judge of appropriateness in the affairs of private life, 
except by the conduct of men in similar situations? How 
do we judge of the appropriateness of a public contrivance 
in aid of the public finances under the immediate pressure of 
the necessities of war except by the conduct of other nations 
under similar stress? I do not argue for a power because 



LEGAL TENDER CASE 569 

other nations have done it. I only argue that if this nation 
has appropriate and adapted means, we can determine by 
the experience and conduct of other nations under similar 
political and national conditions, what appropriate means 
are. Every nation under the modern system of society, for 
reasons which I shall point out briefly, but I think, dis- 
tinctly, always has found and always will find it, in the cul- 
mination of terror and of danger that war brings to all the 
relations of any society involved in it, necessary to be master 
of the question of legal tender in private transactions, as a 
part of the financial system of the nation, or else legal tender 
in private transactions will be the master of the fate and 
financial resources of the Government. You must have 
authority somewhere; and where there is an inexorable law 
that the Government cannot break, that inexorable law in 
the private interest that controls it, is the master of the 
Government. Its wisdom, as I have said, is not to be con- 
sidered judicially. Wisdom after an event is always wiser 
than wisdom during it; for it has more experience. But 
wisdom of action in the presence of events cannot be post- 
poned to have the light of the upshot of it, without the ex- 
pedient being resorted to, to guide you whether it should be 
resorted to. Wisdom does not live wholly, any more than 
it will die wholly, with the judiciary. Legal authority in 
construction on judicial criteria, as to the conduct of the 
Government belongs to the judiciary; but to judge over the 
action of government on political criteria of wisdom or rash- 
ness, of skill or clumsiness, does not belong to the courts. 
And if the whole experience of human aft'airs shows that 
this method has been so appropriate, that it has never failed 
to be resorted to when the pressure was up to the point 
where it came in, its appropriateness is determined and its 
wisdom is determined and its wisdom is with the legislature 
that is to act. 

How is it that a Government situated as ours was on the 



570 SPEECHES OF WILLIAM MAXWELL EVARTS 

25tli of February, 1862, in reference to its duties to lay and 
collect taxes, its duties to sustain the public credit, its duties 
to carry on the powers of war, its duties to preserve peace and 
strength in the loyal portions of the country, and its duty to 
account to this people for the trust confided to it and to it 
alone, impossible of execution by any other public authority, 
impossible of execution by the people in their primary ca- 
pacity without revolution and destruction — how is it that 
the sober, just, rational, judicial exploration of these powers 
and duties will find occasion for the legislature to be of opin- 
ion that this was an appropriate resort? The argument, on 
our side is entitled m determining this judicial criterion to the 
political postulate, that the Government of the United 
States could not have been sustained in the judgment of the 
authority charged with its maintenance without a resort to 
this financial expedient which had been at the service of 
other governments and was familiar in our owai past history. 
Otherwise you get into a discussion of the opportuneness or 
rashness or wisdom or circumspection on the part of Con- 
gress, never possible to become judicial questions. You must 
have the situation in which without this resort, the national 
legislature thought the Government would fall; with it, that 
it would be saved, and the experience we have is, that it was 
resorted to and that the country was saved. What would 
have happened by greater abstinence from this power, can 
only be matter of debate. Safety has been secured. The 
means aiding in that must now be deemed appropriate, unless 
plainly to be shown to have been excessive, extravagant and 
perverse. 

At this time we had no internal taxes. On the 25th of 
February, 1862, we had no internal revenue provided for even 
for future collection, the first act having been passed July 1, 
1862, At this period we had no system of paper currency at 
the service of and controlled by Federal legislation ; for the 
national bank system was not brought into existence even 



LEGAL TENDER CASE 571 

prospectively until an act just one year later, February 25, 
1863, and the war was pressed by the rebellion with no 
observance of our financial system or our imperfect legisla- 
tion. They did not wait to press the colunms of their jiower 
upon us until they saw that we had provided legislation to 
meet it. They did not wait to attempt the exhaustion of our 
financial resources and of financial patience and subordina- 
tion of our people, until we had provided an apparatus of 
taxation and received the inflowing treasures, or an ap])ara- 
tus of paper money controlled by the Federal Government 
and received its aid in support of the volume of currency to 
strengthen the Government and relieve the people. They 
took us as we were, without internal revenue and without 
paper money controlled by the Federal Government, and the 
question then was, How shall this Government possess itself 
by taxation from the people either in the form of immediate 
exaction or of loan.^ For a public loan is nothing but a dis- 
count of taxation; it is to support by a future taxation the 
confidence of capitalists of the country and of the world 
which secure the loan — how shall the Government furnish 
itself by taxation with means to carry on the war? Nay, 
how shall it furnish the people, willing, loyal, faithful, able 
and energetic as they, with the medium, with the faculty of 
paying the taxes of the Government in the immense volume 
that they need to be precipitately poured into the treasury? 
How, either in the form of the exacted tax or in tlie form of 
the anticipated tax by loan on public credit, shall this people 
have the medium to aid their Government? The States can 
do nothing for it. If the inexorable law of private right can 
demand the maintenance of the legal tender between man 
and man in gold and silver, while the Government has no 
power to pay gold or silver in its public transactions, and no 
power to exact gold and silver from the public debtor, and 
there be collision between this private power of compulsory 
exaction of debts interfering with the operations of the 



572 SPEECHES OF WILLIAM MAX^VELL EVARTS 

Government in laying taxes, in borrowing money, in paying 
troops, then I submit there is presented nothing but sheer 
conflict between the power of the Government to accommo- 
date this measure of private law to its necessity, and the 
power of the private creditor to exact the measure of his 
authority in defeat and prostration of the public finance 
and of the public safety. I know that fallacy in reasoning 
too well, which is satisfied with looking at the mischief of any 
course of procedure and which does not look at the force and 
effect of the evils which are to attend the opposite course of 
action or inaction. 

Now, what are you going to do with the public finances of 
the country that require in some sort or shape, effectively, 
the means of expenditure under the exigencies imposed by a 
public enemy, and not measured by wisdom or duty — ex- 
penditures, as I have said, in five years, equal to the volume 
of our revenue for fifty years of peace at the highest measure 
they have reached.? You have got to get that amount by 
taxation. Your people have got to have the means after a 
fashion at least, of paying it, and you have got to have 
it consistently with the maintenance as far as may be, of the 
business and the habits of the commercial people, and of the 
natural circulation of the resources of the country in trade 
and in industry, which furnish after all, the final measure 
and the ultimate basis of the public credit and of the public 
strength. 

It is asked in some of the judicial opinions and is advanced 
in the way of argument, why resort to this method outside of 
direct agency and bearing upon private interests and obliga- 
tions so injuriously, when the Government had power to 
exact the last dollar of the money of the country by taxa- 
tion? Well, agreed. The Government of the country had 
a right to lay a tax of one hundred per cent, payable in ten 
days, upon all the property within its limits. An excellent 
faculty! And when it had been done, where would have 



LEGAL TENDER CASE 573 

been the property of the country? In the hands of the citi- 
zens still or in the public treasury? It has the power of con- 
scription, of taking all the physical strength suitable for the 
military service of the country into warlike array without 
paying a dollar. I do not think we would venture to carry 
it to the extent of not feeding the soldiers, but we might re- 
quire them to feed themselves. And what does all that 
amount to? It is a faculty and a power, absurd and impos- 
sible. So, too, they say you may use your money to pay 
your debts. You may pay your troops in the field, a million 
of men, with that money, and paying them they may send 
it to their wives and families at home to pay the butcher and 
the baker; and the butcher and baker may cast their wives 
and families into jail because they offer them only the money 
that the Government has paid the soldiers, and not the gold 
and silver that has fled from the country in the presence and 
dangers of war, either for safety abroad, or hoarded in the 
secret coffer of the timid and the sordid. That is what may 
be done. And how long w^ould it be before the soldiers, told 
the money is good enough for them, and yet cannot buy 
bread and meat with it for their families, would say, if good 
enough for us and not for the butcher and baker at home, 
we will go home and send the butcher and baker here to take 
it and we will have better money? They say it, not in mu- 
tiny, not in violence, but in the natural protest that no 
government can disregard. 

If you admit that the basis of affairs in this country can- 
not be carried on in the transactions of public taxation and 
of public payments upon the measure of gold and silver, by 
reason of your needing to anticipate the resources of your 
Government and making debt at once and its securities, 
money of the country — if you admit that, then you must 
admit that the private relations of life, which furnish after 
all, the basis and the gauge upon which the public duties can 
be performed by the taxpayers, and the jjublic obligations of 



574 SPEECHES OF WILLIAM MAXWELL EVARTS 

the Government ought to be measured, and must be, upon 
the same standard. 

I have been at a loss to find in the judicial arguments of 
the courts below, or in those made in the briefs here, or in 
the oral arguments, however interesting, valuable and 
thorough, they have been, presented to your Honors, any 
substitute for this financial expedient, which instead of 
exacting taxes in solido for the whole amount at once, in- 
stead of exacting them in specie, exacted them but furnishmg 
at the same time a promise of the Government, that whoever 
would supply them should be repaid, and thus turned into a 
loan or anticipation of taxes instead of absolute present 
exaction. Was specie payment contmued by moneyed 
corporations in the United States? No. Could it be? No. 
A nation brought up with metallic and paper currency mixed, 
and placed under circumstances when the volume of its finan- 
cial transactions becomes fabulous compared with all past 
operations of the Government, which was furnished with no 
system of paper money and havmg no immediate possible 
mode of establishmg it except on the public credit, under- 
takes to distribute the pressure over the future industry of 
the country, by making it a loan instead of an exaction of 
present taxes, and to distribute it in the burden and adjust- 
ment of society to it, by making it the measure of dealing 
between the just and the unjust, the loyal and the disloyal, 
the brave and honest friends of government and the timid 
and cowardly deserters of duty, by saying "you shall bear 
this now as a loan, and it shall serve but as an arrangement of 
a great clearing house for all the finances of this country, 
private and public, until this war is over." We promise to 
pay the dollars that have intrinsic value, and the public 
faith is pledged for them, and when the public resources are 
adequate they shall be paid at the will of the holder. They 
may be digested and changed into the postponed loan having 
interest payable in coin, and future payment in solido at a 



LEGAL TENDER CASE 57.5 

period when the Government shall be in possession by taxa- 
tion, of means. In the meanwhile all this loan thus fur- 
nished you and taken from you, for that is its double char- 
acter, the public credit is advanced to the taxpayers that 
they may use it in paying taxes; the public loan is exacted 
from the people by requiring them to take this money or 
nothing— in the meanwhile this shall be a loan to you as a 
whole; there shall be no power for one to have an advantage 
over the other, but what we under this necessity impose 
upon our creditors, what we thus in necessity limit our de- 
mand for from our debtors, shall be the measure of debt and 
credit as between you, and the final settlement shall be made 
by the holders with the Treasury of the United States. 

Now, the mischiefs and injuries have been held up as if 
they were the objects of the legislation of this country. 
These are its objects : A government having power to exact 
in solido by present tax, all the property of the people, having 
power to exact in solido the military strength of the country 
without pay, subject only to the physical strength to enforce 
these exactions, chooses thus to administer, thus to measure, 
thus to moderate its processes. And this is said to be a 
trifling with private rights because, in the jostling of this 
settlement, it happens that a man gets less for his oats, or 
less for his farm, or less for his gold, than he would otherwise 
get. This disturbance of contracts in this administrative, 
conservative, preservative form, the best possible under the 
circumstances, is decried and condemned because the Gov- 
ernment instead did not take the tax payers by the throat 
and exact the uttermost farthing. The Government is the 
creditor of the people for all that they have and are, in its 
hour of danger. The man who goes to fight for his country 
pays a debt; the man who yields his treasure to the country 
pays a debt; and when the nation forgives this enormous 
debt by reason of the infirmity or inability to i)ay it on the 
part of the debtors, unless it have patience with thcin until 



576 SPEECHES OF WILLIAM MAXW^ELL EVARTS 

they can pay it all, and thus deals with them in mercy, is to 
be restrained from withholding this debtor, thus forgiven, 
from going to his fellow-servant and taking him by the throat 
and casting him into prison until, in gold and silver, he shall 
pay the uttermost farthing. 

I submit that that is the situation of the country^ that is 
the obligation of the citizens; and yet because, as an inci- 
dental pressure in the wave of this great financial tide neces- 
sary to float the ship of state over the breakers, some cock- 
boat is crushed, it is said the power of the Government was 
inadequate to it, and the sacredness of contracts and obliga- 
tions is thus incidentally interfered with. Why, the Gov- 
ernment, in this hour of its stress, may separate the bride- 
groom from the bride at the foot of the altar, thus impairing 
the obligation of the sincerest contract of human society. I 
may beckon the son from the dying bed of his mother, thus 
impairing the highest obligation of nature, and trespassing 
upon the commandment of God w^e promise to obey. But 
it cannot say to the butcher and the baker at home, that the 
money which it pays to its soldiers in the field shall feed their 
families until the war is over. 

The truth is that the argument and the mvective alike 
deal with an incidental evil as if it was the appropriate and 
expected end. It mistakes the suffering of the patient under 
the surgeon's knife for the quivering anguish of the victim 
under the blade of the assassin. It mistakes the knife and 
cautery, that are to save, for the fire and sword that are to 
destroy, and asks unblushingly if a government founded on 
justice can compel a dealer to take less than his contract and 
to have it in anything but gold, even if the preservation of 
these peaceful and just relations when possible must yield 
when they become impossible. 

What followed from this measure of the Government.^ 
Taxes were possible to be paid; services and supplies were 
possible to be obtained; and the faith of this people in their 



LEGAL TENDER CASE 577 

Government did give an intrinsic value to the promise to 
pay in gold and silve • when the Government should be able 
to pay. The people lying ready to meet, anxious to be mar- 
shaled to meet the terrible array found in this administra- 
tion of finance, as in the military distribution of strength, 
their means of safety; and when they sat imj^loring at the 
gate of our temple of liberty and the Government said, 
"Silver and gold have I none, but such as I have, give I 
thee," they rose and walked and saved the country under 
this benign adjustment of means to ends. 

The judicial opinions given in the cases with great force, 
with great judgment, with great plenitude, illustrate all 
these financial operations. It is enough for me to say the 
relation is obvious, the result is natural and useful, and unless 
you will point me to a constitution that says in so many 
words, "This government shall be preserved only up to the 
legal tender point and then it shall fall, for it is better that 
gold and silver should be our masters than that our con- 
stituted liberties should be maintained at the disturbance of 
the legal tender," I shall be justified in approving, the finan- 
cial agent of the Government will be justified in administer- 
ing, this subjection of the compulsory payment of debts in 
private contracts to the compulsory execution in war of the 
obligations of Government. 

But, if the Court please, if it should be held that this act 
was without authority from the Constitution of the United 
States, as it stood at the time of the passage of the law, in 
this, that that feature of the statute providing for the issue 
and funding of the public debt was without authority, I 
submit that that defect of law can no longer be urged under 
the 14th amendment of the Constitution, for that has rati- 
fied every act of Congress, according to its fair intent and 
meaning, that has executed an issue of the public debt. The 
language of that clause of the 14th amendment to which I 
advert, states, page 20 of my brief, "The validity of the 
39 



578 SPEECHES OF WILLIAM MAXWELL EVARTS 

public debt of the United States, authorized by law, including 
debts incurred for payment of pensions and bounties for 
services in suppressing insurrection or rebellion, shall not be 
questioned." 

Now, what does that mean? We do not pass constitu- 
tional amendments to say that laws of Congress that have 
been passed conformably to the old Constitution shall not be 
questioned, because we should have to pass another amend- 
ment to say that this amendment shall not be questioned, 
and so forth and so forth. We pass it, according to the 
force of the terms used, for a questionable measure of law 
regarding the public debt, and say it shall not be questioned 
hereafter. 

The supreme, the deliberate authority of the people, execut- 
ing their reserved powers, if they had them, over legal tender 
or whatever else, looking backward and applying indemnity 
to the public agents and approval to the public means, says 
that the laws which during the stress of war, have been 
passed in aid and support of the pubhc credit, shall not be 
questioned; they shall not be questioned in court or places 
or arguments or theories. Whatever you find on the law 
book of this nation, by its faithful servants deemed at the 
time needed and useful in aid of the public credit, shall in- 
here as an unquestionable feature in the form and effect of its 
securities, according to the tenor of the law. No narrow 
scope, no less efficient authority, will answer as the notice 
for which this intervention of the supreme will of the Amer- 
ican people was asked and was rendered. I am sure I do not 
know, as matter of fact, in judicial or practical affairs, that 
there is one single point in which the debt of the United 
States, in the form and effect in which the legislation has 
issued ahd maintained it, has been or is questioned, except 
in this mere fact of the legal tender feature. Can you limit 
the word questioned to its political sense by the action of 
Congress repealing, subverting, neglecting or thwarting the 



LEGAL TENDER CASE 579 

public debt? Why, if there be any element at all in what is 
universal, it must include the judicial question of validity 
in what Congress has heretofore done. We survey now the 
past situation; we look at the debt as it is, or look at the 
laws as they are and their feature, and the vigor that has 
been given to the public securities, and we say now in our 
plenary sovereignty that that debt, as read in the letter of 
the law, shall never be questioned. 

I have but to ask the attention of the Court, not so much 
to the discussion, as to my abstinence from discussion, of the 
secondary questions involved here. They have been very 
ably and very ingeniously presented both by Mr. Townsend 
and Mr. Potter, in exhibition of the inconveniences, the in- 
congruities and the disappointments which will grow out of 
this or that form of construction of the degree of efficacy 
that shall be given to this money in the discharge of past 
contracts or obligations arising substantially ex delicto. A 
great part of the criticism, ingenious and interesting, will be 
found after all to be but a form of that criticism we all must 
submit to, the imperfection of human justice; for in the very 
case that his honor. Judge Nelson, put of the oats bought in 
Canada and lost on the North River, the rule, undisturbed 
now by this question of medium value, as he rightly holds, 
is, that in the phrase of law, the invoice price is to furnish 
the value. Very well. I bought my oats at fifty cents in 
gold in Canada, and a week after without any disturbance 
in the currency they are worth one dollar by the rise of oats, 
and my oats which are worth a dollar to me are paid, by the 
tort feasor in the collision, at fifty cents. General rules are 
necessary. The oats may have fallen to twenty-five cents; 
the tort feasor instead of doing the particular justice of re- 
storing my oats which he might do at twenty-five cents, 
which is the exact restoration of my situation, provided it be 
immediate, is obliged to pay fifty cents for oats sunk worth 
only twenty-five cents. 



580 SPEECHES OF WILLIAM MAXWELL EVARTS 

This is the imperfection of natural and human tribunals. 
A man trusts his jaw to a dentist and it is broken. The 
courts instead of giving him a new jaw, gives him so much 
money in his pocket. So in a variety of ways. It is but 
the imperfection of human justice. A great many of the 
cases, I am persuaded, will not stand the test of law. If I 
deliver a bag of gold to my clerk or porter to pay duties, 
and he sells it by the way, and brings, as Mr. Potter supposes, 
for the money, legal tender notes and pays his debt to me, 
that will not save him from the State prison for having em- 
bezzled my gold as he did on the way. There are a great 
many cases where an injudicious selection of agents for 
definite trusts results, in spite of all the law can do, to dis- 
appointment of confidence reposed. But all these modifica- 
tions being applied and the matter reduced to what belongs 
to it, this same general necessity of law which I have 
adverted to, when this disturbing element of the measure of 
damages being changed does not come in, requires us to 
apply only the same possible completeness of justice to this 
disturbing element if it be a legal one. 

You must give a judgment on a contract. If it be a con- 
tract sounding in debt, there is no question of evidence and 
none for a jury. The law then must pass upon it. It is in 
dollars of our currency. That contract of law will sustain 
a judgment only for the number of dollars claimed in it. 
When the law says that the metallic currency shall be met in 
dollars of legal tender then the judgment of the court must 
be so, and it would not escape injustice if it did the other and 
gave de presenti in its judgment of to-day a measure of value 
in paper money adequate to the gold unless it be specific per- 
formance of judgment, which it cannot do, for the specific 
performance of the judgment would be that it should be paid 
in gold, unless paper money equal in value should be ten- 
dered. If when gold is 280, an obligation to pay a hundred 
dollars in gold is to result in a judgment for $280, why the 



LEGAL TENDER CASE 581 

judgment creditors can exact $'280 in greenbacks when $100 
of them are equal to his debt. 

You must, therefore, have a general rule of law, and ])ress- 
ing that upon the Court, and insisting upon this and this 
alone as necessary in the public administration of the cjues- 
tion, I say that whenever in contract a debt is liquidated in 
money of our currency called dollars judgment payable in 
legal tender according to law can be only for that amount. 
But when you liquidate it in judgment, not being liquidated 
in contract or arising from tort, and evidence is admissible 
either to prove what foreign money is worth or to prove what 
the value converted or the measure of trespass should be 
accounted in, then the court by the established rules of law 
liquidate it on the judgment of a jury finding on the fact. 
And that judgment is then for the first time the liquidation 
in dollars of the United States of the obligation, to show that 
it becomes a debt. All other difficulties, if your Honors 
please, of adjustment or interpretation as to what belongs to 
notes payable in commodities and how they are to be liqui- 
dated in commodities, as they are payable in commodities 
when they describe gold and silver dollars, are matters of 
private right submitted to the jurisdiction of this Court, 
with which the public, as now represented in this presenta- 
tion of the matter, to which your Honors have done me the 
favor to listen, and which is submitted on their behalf, has 
nothing to do. 



VII 

ARGUMENT BEFORE THE INTERNATIONAL 

TRIBUNAL OF ARBITRATION AT GENEVA 

NOTE 

By the Treaty of Washington of May 8, 1871, all claims against 
Great Britain in behalf of the citizens of the United States who, 
during the Civil War, had suffered loss through the depredations 
upon the high seas of the Confederate cruisers, built, equipped 
and manned in the ship-yards of England, were referred to arbitra- 
tion. The principal offender among these cruisers was the "Ala- 
bama" and all these claims thus arising were called generically the 
Alabama Claims. An important article of the treaty relating to 
this subject provided that the arbitrators in deciding the matter 
submitted to them should be guided by the following rules: 

"A neutral government is bound, first, to use due diligence to 
prevent the fitting out, arming, or equipping, within its jurisdiction, 
of any vessel which it has reasonable ground to believe is intended 
to cruise or to carry on war against a power with which it is at 
peace; and also to use like diligence to prevent the departure from 
its jurisdiction of any vessel intended to cruise or carry on war as 
above, such vessel having been specially adapted in whole or in 
part, within such jurisdiction to war-like use. Secondly, not to 
permit or suffer either belligerent to make use of its ports or waters 
as the base of naval operations against the other, or for the purpose 
of the renewal or augmentation of military supplies or arms, or 
the recruitment of men. Thirdly, to exercise due diligence in its 
own ports and waters, and, as to all persons within its jurisdiction, 
to prevent any violation of the foregoing obligations and duties." 

The arbitrators named pursuant to the treaty were as follows: 
Mr. Charles Francis Adams, United States Minister at London 
during the Civil War, appointed by President Grant; Sir Alexander 
Cockburn, Chief Justice of the Queen's Bench, appointed by Queen 
Victoria; Count Frederick Sclopis, an eminent Italian jurist and 
statesman, appointed by the King of Italy; Mr. Jacob Staempfli, a 

582 



THE ALABAMA CLABIS 583 

former President of the Swiss Confederation, appointed by the 
President of that Government; and Baron d' Itajuba, Brazilian 
minister at Paris, appointed by the Emperor of Brazil. 

The sessions of the tribunal were held in the "Salle des Con- 
ferences" of the ancient Hotel de Yille at Geneva, Switzerland. 
This room has since been called "Salle de I'Alabama," and a 
tablet commemorating the momentous transactions of the arbitra- 
tion has been placed upon its walls. 

Great Britain was represented before the tribunal by Lord Ten- 
terden, the Agent of his Government, and by Sir Roundel Palmer, 
afterwards Lord Chancellor Selborne, as counsel, with whom was 
associated Mr. Montague Bernard. The Agent for the United 
States was Mr. J. C. Bancroft Davis, and the counsel, three in 
number, were Caleb Gushing, for many years among the foremost 
at the bar, Morrison R. Waite, afterwards Chief Justice of the 
United States Supreme Court, and Mr. Evarts. 

The first meeting of the Tribunal was held December 15, 1871, 
when the printed cases of the two governments with the accompa- 
nying evidence were presented, the arbitrators designating the 
15th of the following April as the time for presenting their re- 
spective counter cases. The final session of the Tribunal was on 
the 14th of September, 1872. 

At the session of the Tribunal held July 25, 1872, in the language 
of Protocol XIV of the conference: 

"On the proposal of Baron d'ltajuba, as one of the arbitrators, 
the Tribunal decided to require a written or printed statement or 
argument from the Counsel of Great Britain upon the following 
questions of law: 

"1. The question of due diligence, generally considered; 

"2. The special question as to the effect of the commissions of 
Confederate ships of war entering British ports; 

"3. The special question, as to the supplies of coal in British 
ports to Confederate ships; with the right to the other party to 
reply either orally or in writing, as the case may be." 

On July 29 the printed argument of Sir Roundel Palmer, Counsel 
for the British Government, was filed with the arbitrators pursuant 
to the direction of the Tribunal, and on the 5th and Gth of August 
Mr. Evarts dehvered the following oral argument in reply: 



584 SPEECHES OF AVILLIAM MAX\^TELL EVARTS 

ARGUMENT 
First Day, August 5, 1872 

In the course of the deliberations of the Tribunal, it has 
seemed good to the arbitrators, in pursuance of the provi- 
sion of the fifth article of the Treaty of Washington, to in- 
timate that on certain specific points they would desire a 
further discussion on the part of the Counsel of Her Bri- 
tannic Majesty for the elucidation of those points in the 
consideration of the Tribunal. Under that invitation, the 
eminent Counsel for the British Government has presented 
an argument which distributes itself, as it seems to us, while 
dealing with the three points suggested, over a very general 
examination of the argument which has already been pre- 
sented on the part of the United States. 

In availing ourselves of the right, under the treaty, of 
replying to this special argument upon the points named by 
the Tribunal, it has been a matter of some embarrassment 
to determine exactly how far this discussion on our part 
might properly go. In one sense, our deliberate judgment 
is, that this new discussion has really added but little to the 
views or the argument which had already been presented on 
behalf of the British Government, and that it has not dis- 
turbed the positions which had been insisted upon, on the 
part of the United States, in answer to the previous discus- 
sions on the part of the British Government, contained in its 
case, counter-case, and argument. 

But to have treated the matter in this way, and left our 
previous argument to be itself such an answer as we were 
satisfied to rely upon to the new developments of contrary 
views that were presented in this special argument of the 
British Government, would have seemed to assume too con- 
fidently in favor of our argument, that it was an adequate 
response in itself, and would have been not altogether re- 
spectful to the very able, very comprehensive, and very 



THE ALABAMA CLAIIVIS 585 

thorough criticism upon the main points of that ar^auiuiit, 
which the eminent Counsel of Her Majesty has now pre- 
sented. Nevertheless, it seems quite foreign from our duty, 
and quite unnecessary for any great service to the Tribunal, 
to pursue in detail every point and suggestion, however perti- 
nent and however skilfully applied, that is raised in this new 
argument of the eminent Counsel. We shall endeavor, 
therefore, to present such views as seem to us useful and 
valuable, and as tend in their general bearing to dispose of 
the diflficulties and counter propositions opposed to our 
views in the learned Counsel's present criticism upon them. 
The American argument, presented on the loth of June, 
as bearing upon these three points now under discussion, 
had distributed the subject under the general heads of the 
measure of international duties; of the means which Great 
Britain possessed for the performance of those duties; of the 
true scope and meaning of the phrase "due diligence," as 
used in the treaty; of the particular application of the duties 
of the treaty to the case of cruisers on their subsequent visits 
to British ports; and, then, of the faults, or failures, or short- 
comings of Great Britain in its actual conduct of the trans- 
actions under review, in reference to these measures of duty, 
and this exaction of due diligence. 

The special topic now raised for discussion, in the matter 
of "due diligence" generally considered, has been regarded 
by the Counsel of the British Government as involving a 
consideration, not only of the measure of diligence required 
for the discharge of ascertained duties, but also the di.scus- 
sion of what the measure of those duties was; and, then, of 
the exaction of due diligence as applicable to the different 
instances or occasions for the discharge of that duty, which 
the actual transactions in controversy between the parties 
disclosed. That treatment of the points is, of course, suit- 
able enough if, in the judgment of the learned Counsel, 
necessary for properly meeting the question specifically imder 



586 SPEECHES OF WILLIAM MAX^VELL EVARTS 

consideration, because all those elements do bear upon the 
question of "due diligence" as relative to the time, and 
place, and circumstances that called for its exercise. Never- 
theless, the general question, thus largely construed, is really 
equivalent to the main controversy submitted to the disposi- 
tion of this Tribunal by the treaty, to wit, whether the re- 
quired due diligence has been applied in the actual conduct 
of affairs by Great Britain to the different situations for and 
in which it was exacted. 

The reach and effort of this special argument in behalf of 
the British Government, seem to us to aim at the reduction 
of the duties incumbent on Great Britain, the reduction of 
the obligation to perform those duties, in its source and in 
its authority, and to the calling back of the cause to the posi- 
tion assumed and insisted upon in the previous argument in 
behalf of the British Government, that this was a matter, 
not of international duty, and not of international obliga- 
tion, and not to be judged of in the court of nations as a 
duty due by one nation. Great Britain, to another nation, 
the United States, but only as a question of its duty to itself, 
in the maintenance of its neutrality, and to its owti laws and 
its own people, in exerting the means placed at the service 
of the Government by the Foreign Enlistment Act for con- 
trolling any efforts against the peace and dignity of the 
nation. 

We had supposed, and have so in our argument insisted, 
that all that long debate was concluded by what had been 
settled by definitive convention between the two nations as 
the law of this Tribunal, upon which the conduct and duty 
of Great Britain, and the claims and rights of the United 
States, were to be adjudged, and had been distinctly ex- 
pressed, and authoritatively and finally established, in the 
three rules of the treaty. 

Before undertaking to meet the more particular inquiries 
that are to be disposed of in this argument, it is proper that. 



THE ALABAMA CLAIMS 587 

at the outset, we should take notice of an attempt to dis- 
parage the efficacy of those rules, the source of their author- 
ity, and the nature of their obligation upon Great Britain. 
The first five sections of the special argument are devoted 
to this consideration. It is said that the only way that these 
rules come to be important in passing judgment upon the 
conduct of Great Britain, in the matter of the claims of the 
United States, is by the consent of Her Majesty that, in 
deciding the questions between the two counti ies arising out 
of these claims, the arbitrators should assume that, during 
the course of these transactions. Her Majesty's Government 
had undertaken to act upon the principles set forth in these 
rules and in them announced. That requires, it is said, as 
a principal consideration, that the Tribunal should deter- 
mine what the law of nations on these subjects would have 
been if these rules had not been thus adopted. Then it is 
argued that, as to the propositions of duty covered by the 
first rule, the law of nations did not impose them, and that 
the obligation of Great Britain, therefore, in respect to the 
performance of the duties assigned in that rule, was not 
derived from the law of nations, was not, therefore, a duty 
between it and the United States, nor a duty the breach of 
which called for the resentments or the indemnities that 
belong to a violation of the law of nations. Then, it is 
argued that the whole duty and responsibility and obliga- 
tion in that regard, on the part of Great Britain, arose under 
the provisions of its domestic legislation, under the provi- 
sions of the Foreign Enlistment Act, under a general obliga- 
tion by which a nation, having assigned a rule of conduct 
for itself, is amenable for its proper and equal performance 
as between and towards the two belligerents. Then, it is 
argued that this assent of the British Government, that the 
Tribunal shall regard that Government as held to the per- 
formance of the duties assigned in those rules, in so far as 
those rules were not of antecedent obligation in the law of 



588 SPEECHES OF WILLIAM MAXWELL EVARTS 

nations, is not a consent that Great Britain shall be held 
under an international obligation to perform the rules in 
that regard, but simply as an agreement that they had under- 
taken to discharge, as a municipal obligation, under the pro- 
visions of their Foreign Enlistment Act, duties which were 
equivalent, in their construction of the act, to what is now 
assigned as an international duty; and this argument thus 
concludes: 

When, therefore, Her Majesty's Government, by the sixth article 
of the Treaty of Washington, agreed that the arbitrators should 
assume that Her Majesty's Government had undertaken to act 
upon the principles set forth in the three rules (though declining 
to assent to them as a statement of principles of international law, 
which were in force at the time when the claims arose), the effect 
of that agreement was not to make it the duty of the arbitrators 
to judge retrospectively of the conduct of Her Majesty's Govern- 
ment, according to any false hypothesis of law or fact, but to 
acknowledge, as a rule of judgment for the purposes of the treaty, 
the undertaking which the British Government had actually, and 
repeatedly given to the Government of the United States, to act 
upon the construction which they themselves placed upon the 
prohibitions of their own municipal law, according to which it was 
coincident in substance with those rules. — British Special Argu- 
ment, sec. 5, 

Now we may very briefly, as we think, dispose of this sug- 
gestion, and of all the influences that it is appealed to to 
exert throughout the course of the discussion in aid of the 
views insisted upon by the learned Counsel. In the first 
place, it is not a correct statement of the treaty to say, that 
the obligation of these rules, and the responsibility on the 
part of Great Britain to have its conduct judged according 
to those rules, arise from the assent of Her Majesty thus 
expressed. On the contrary, that assent comes in only sub- 
sequently to the authoritative statement of the rules, and 
simply as a qualification attendant upon a reservation on 



THE ALABAIMA CLABIS 589 

the part of Her Majesty, that the previous declaration sluill 
not be esteemed as an assent on the part of the British Govern- 
ment, that those were in fact the principles of the hiw of 
nations at the time the transactions occurred. 

The sixth article of the treaty thus determines the author- 
ity and the obligation of these rules. I read from the very 
commencement of the article: 

"In deciding the matters submitted to the arl)itrators 
they shall be governed by the following three rules which 
are agreed upon by the high contracting parties as rules to 
be taken as applicable to the case and by such principles of 
International Law not inconsistent therewith"; and then 
the rules are stated. 

Now, there had been a debate between the dii)lomatic rep- 
resentatives of the two Governments, whether the duties 
expressed in those rules were wholly of international obliga- 
tion antecedent to this agreement of the parties. The 
United States had from the beginning insisted that they 
were; Great Britain had insisted that, in regard to the out- 
fit and equipment of an unarmed ship from its ports, there 
was only an obligation of municipal law and not of inter- 
national law; that its duty concerning such outfit was 
wholly limited to the execution of its Foreign Enlistment 
Act; that the discharge of that duty and its responsibility 
for any default therein, could not be claimed by the United 
States as matter of international law, nor upon any judg- 
ment otherwise than of the general duty of a neutral to 
execute its laws, whatever they might be, with impartiality 
between the belligerents. 

To close that debate, and in advance of the submission of 
any question to this Tribunal, the law on that subject was 
settled by the treaty, and settled in terms which, so far as 
the obligation of the law goes, seem to us to admit of no 
debate, and to be exposed to not the least uncertainty or 
doubt. But in order that it might not be an imputation 



590 SPEECHES OF ^MLLIAM IVIAXWELL EVARTS 

upon the Government of Great Britain, that while it pres- 
ently agreed that the duties of a neutral were as these rules 
express them, and that these rules were applicable to this 
case, that a neutral nation was bound to conform to them, 
and that they should govern this Tribunal in its decision — 
in order that from all this there might not arise an imputa- 
tion that the conduct of Great Britain, at the time of the 
transactions (if it should be found in the judgment of this 
Tribunal to have been at variance with these rules), would 
be subject to the charge of a variance with an acknowledg- 
ment of the rules then presently admitted as binding, a 
reservation was made. What was that reservation? 

Her Britannic Majesty has commanded her High Commis- 
sioners and Plenipotentiaries to declare that Her Majesty's Govern- 
ment cannot assent to the foregoing rules as a statement of princi- 
ples of international law which were in force at the time when the 
claims mentioned in Article I arose, but that Her Majesty's Gov- 
ernment, in order to evince its desire of strengthening the friendly 
relations between the two countries, and of making satisfactory 
provision for the future, agrees that in deciding the questions 
between the two countries arising out of these claims, the arbitra- 
tors should assume that Her Majesty's Government had under- 
taken to act upon the principles set forth in these rules. 

Thus, while this saving clause in respect to the past con- 
duct of Great Britain was allowed on the declaration of 
Her Majesty, yet that declaration was admitted into the 
treaty only upon the express proviso that it should have no 
import of any kind in disparaging the obligation of the rules, 
their significance, their binding force, or the principles upon 
which this Tribunal should judge concerning them. 

Shall it be said that when the whole oflBce of this clause, 
thus referred to, is of that nature and extent only, and when 
it ends in the determination that that reservation shall have 
no effect upon your decision, shall it, I say, be claimed that 
this reservation shall have an effect upon the argument? 



THE ALABAMA CLAIIVIS 591 

How shall it be pretended, before a Tribunal like this, that 
what is to be assumed in the decision is not to be assumed in 
the argument! 

But what does this mean? Does it mean that these three 
rules, in their future application to the conduct of the United 
States — nay, in their future application to the conduct of 
Great Britain, mean something different from what they 
mean in their application to the past? What becomes, 
then, of the purchasing consideration of these rules for the 
future, to wit, that, waiving debate, they shall be applied to 
the past? 

We must therefore insist that, upon the plain declarations 
of this treaty, there is nothing whatever in this proposition 
of the first five sections of the new special argument. If 
there were anything in it, it would go to the rupture, almost, 
of the treaty; for the language is plain, the motive is de- 
clared, the force in future is not in dispute, and, for the con- 
sideration of that force in the future, the same force is to be 
applied in the judgment of this Tribunal upon the past. 
Now, it is said that this declaration of the binding authority 
of these rules is to read in the sense of this very complicated, 
somewhat unintelligible, proposition of the learned Counsel. 
Compare his words with the declaration of the binding au- 
thority of these rules, as Rules of International Law, actually 
found in the treaty, and judge for yourselves whether the 
two forms of expression are equivalent and interchangeable. 

Can any one imagine that the United States would have 
agreed that the construction, in its application to the i)ast, 
was to be of this modified, uncertain, optional character, 
while, in the future, the rules were to be authoritative, bind- 
ing rules of the law of nations? When the United States 
had given an assent, by convention, to the law that was to 
govern this Tribunal, was it intended that that law should 
be construed, as to the past, difi'erently from what it was to 
be construed in reference to the future? 



592 SPEECHES OF WILLIAM MAXWELL EVARTS 

I apprehend that this learned Tribunal will at once dis- 
miss this consideration, with all its important influence upon 
the whole subsequent argument of the eminent Counsel, 
which an attentive examination of that argument will dis- 
close. 

With this proposition falls the farther proposition, already 
met in our former argument, that it is material to go into 
the region of debate as to what the law of nations upon these 
subjects, now under review, was or is. So far as it falls 
within the range covered by these rules of the treaty, their 
provisions have concluded the controversy. To what pur- 
pose, then, pursue an inquiry and a course of argument 
which, whatever way in the balance of your conclusions it 
may be determined, cannot affect your judgment, or your 
award? If these rules are found to be conformed to the law 
of nations in the principles which it held antecedent to their 
adoption, the rules cannot have for that reason any greater 
force than by their own simple, unconfirmed authority. If 
they differ from, if they exceed, if they transgress the re- 
quirements of the law of nations, as it stood antecedent to 
the treaty, by so much the greater force does the convention 
of the parties require that, for this trial and for this judg- 
ment, these rules are to be the law of this Tribunal. This 
argument is hinted at in the counter-case of the British 
Government; it has been the subject of some public discus- 
sion in the press of Great Britain. But the most authorita- 
tive expression of opinion upon this point from the press of 
that country, has not failed to stigmatize this suggestion as 
bringing the obligation of the rules of this treaty down to 
"the vanishing point." * 

At the close of the special argument we find a general pres- 
entation of canons for the construction of treaties, and some 
general observations as to the light or the controlling reason 

♦"London Times," February, 1872. 



THE ALABAMA CLAIMS 593 

under which these rules of the treaty should be construed. 
These suggestions may be briefly dismissed. 

It certainly would be a very great reproach to these 
nations, which had deliberately fixed upon three proposi- 
tions as expressive of the law of nations, in their judgment, 
for the purposes of this trial, that a resort to general instruc- 
tions, for the purpose of interpretation, was necessary. 
Eleven canons of interpretation drawn from Vattel, are pre- 
sented in order, and then several of them, as the case suits, 
are applied as valuable in elucidating this or that point of 
the rules. But the learned Counsel has omitted to bring to 
your notice the first and most general rule of Vattel, which, 
being once understood, would, as we think, dispense with 
any consideration of these subordinate canons which Vattel 
has introduced to be used only in case his first general rule 
does not apply. This first proposition is, that "it is not 
allowable to interpret what has no need of interpretation." 

Now these rules of the treaty are the deliberate and care- 
ful expression of the will of the two nations in establishing 
the law for the government of this Tribunal, which the 
treaty calls into existence. These rules need no interpreta- 
tion in any general sense. Undoubtedly there may be 
phrases which may receive some illustration or elucidation 
from the history and from the principles of the law of na- 
tions; and to that we have no objection. Instances of very 
proper application to that resort, occur in the argument to 
which I am now replying. But there can be no possible 
need to resort to any general rules, such as those most 
favored and insisted upon by the learned Counsel, viz., the 
sixth proposition of Vattel, that you never should accept an 
interpretation that leads to an absurdity, — or the tenth, that 
you never should accept an interpretation that leads to a 
crime. Nor do we need to recur to Vattel for what is cer- 
tainly a most sensible proposition, that the reason of the 
treaty, — that is to say, the motive which led to the making 

40 



594 SPEECHES OF WILLIAM MAXWELL EVARTS 

of it and the object in contemplation at the time, — is the 
most certain clue to lead us to the discovery of its true 
meaning. 

But the inference drawn from that proposition, in its 
application to this case, by the learned Counsel, seems very 
wide from what to us appears natural and sensible. The 
aid which he seeks under the guidance of this rule, is from 
the abstract propositions of publicists on cognate subjects, 
or the illustrative instances given by legal commentators. 

Our view of the matter is, that, as this treaty is applied 
to the past, as it is applied to an actual situation between 
the two nations, and as it is applied to settle the doubts and 
disputes which existed between them as to obligation, and 
to the performance of obligations, these considerations fur- 
nish the resort, if any is needed, whereby this Tribunal should 
seek to determine what the true meaning of the High Con- 
tracting Parties is. 

Now, as bearing upon all these three topics, of due dili- 
gence, of treatment of offending cruisers in their subsequent 
visits to British ports, and of their supply, as from a base of 
operations, with the means of continuing the war, these rules 
are to be treated in reference to the controversy as it had 
arisen and as it was in progress between the two nations 
when the treaty was formed. What was that? Here was 
a nation prosecuting a war against a portion of its popula- 
tion and territory in revolt. Against the sovereign thus 
prosecuting his war, there was raised a maritime warfare. 
The belligerent itself thus prosecuting this maritime warfare 
against its sovereign, confessedly had no ports and no waters 
that could serve as the base of its naval operations. It had 
no ship-yards, it had no foundries, it had no means or 
resources by which it could maintain or keep on foot that 
war. A project and a purpose of war was all that could have 
origin from within its territory, and the pecuniary resources 
by which it could derive its supply from neutral nations was 
all that it could furnish towards this maritime war. 



THE ALABAMA CLAIMS 595 

Now, that war having In fact been kept on foot and having 
resulted In great Injuries to the sovereign belhgerent, gave 
occasion to a controversy between that sovereign and the 
neutral nation of Great Britain as to whether these actual 
supplies, these actual bases of maritime war from and In 
neutral jurisdiction, were conforrrable to the law of nations, 
or In violation of Its principles. Of course, the mere fact 
that this war had thus been kept on foot did not, of Itself, 
carry the neutral responsibility. But It did bring Into con- 
troversy the opposing positions of the two nations. Great 
Britain contended during the course of the transactions, and 
after their close, and now here contends, that, however much 
to be regretted, these transactions did not place any respon- 
sibility upon the neutral, because they had been effected only 
by such communication of the resources of the people of 
Great Britain as under International law was Innocent and 
protected; that commercial communication and the resort 
for asylum or hospitality In the ports was the entire measure, 
comprehension and character of all that had occurred within 
the neutral jurisdiction of Great Britain. The United States 
contended to the contrary. 

What then was the solution of the matter which settles 
amicably this great dispute? "Why, first, that the principles 
of the law of nations should be settled by convention, as they 
have been, and that they should furnish the guide and the 
control of your decision; second, that all the facts of the 
transactions as they occurred should be submitted to your 
final and satisfactory determination; and, third, that the 
application of these principles of law settled by convention 
between the parties to these facts as ascertained by your- 
selves should be made by yourselves, and should. In the end, 
close the controversy, and be accepted as satisfactory to 
both parties. 

In this view, we must Insist that there Is no occasion to go 
into any very considerable discussion as to the meaning of 



596 SPEECHES OF WILLIAM MAXWELL EVARTS 

these rules, unless in the very subordinate sense of the ex- 
planation of a phrase, such as "base of operations," or 
"military supplies," or "recruitment of men," or some simi- 
lar matter. 

I now ask your attention to the part of the discussion 
which relates to the effect of a "commission," which, though 
made the subject of the second topic named by the Tribunal, 
and taken in that order by the learned Counsel, I propose 
first to consider. 

It is said that the claims of the United States in this be- 
half, as made in their argument, rest upon an exaggerated 
construction of the second clause of the first rule. On this 
point, I have first to say, that the construction which we 
put upon that clause is not exaggerated; and, in the second 
place, that these claims in regard to the duty of Great 
Britain in respect to commissioned cruisers that have had 
their origin in an illegal outfit in violation of the law of 
nations, as settled in the first rule, do not rest exclusively 
upon the second clause of the first rule. They, undoubt- 
edly, in one construction of that clause, find an adequate 
support in its proposition; but, if that construction should 
fail, nevertheless, the duty of Great Britain in dealing with 
these offending cruisers in their subsequent resort to its ports 
and waters, would rest upon principles quite independent of 
this construction of the second clause. 

The second clause of that rule is this: "And also to use 
like diligence to prevent the departure from its jurisdiction 
of any vessel intended to cruise or carry on war as above, 
such vessel having been specially adapted in whole or in part 
within such jurisdiction to warlike use." 

It is said that this second clause of the first rule manifestly 
applies only to the original departure of such a vessel from 
the British jurisdiction, while its purposes of unlawful hos- 
tility still remain in intention merely, and have not been 
evidenced by execution. 



THE ALABAJVU CLAIMS 597 

If this means that a vessel that had made its first evasion 
from a British port, under circumstances which ditl not 
inculpate Great Britain for failing to arrest her, and then 
had come within British ports a second time, and the evi- 
dence, as then developed, would have required Great Britain 
to arrest her, and would have inculpated that nation for 
failure so to do, is not within the operation of this rule, I am 
at a loss to understand upon what ])rinciple of reason this 
pretension rests. If the meaning is that this second clause 
only applies to such offending vessels while they remain in 
the predicament of not having acquired the protection of a 
"commission," that pretension is a begging of the question 
under consideration, to wit, what the effect of a "connnis- 
sion" is under the circumstances proposed. 

I do not understand exactly whether these two cases are 
meant to be covered by this criticism of the learned Counsel. 
But let us look at it. Supposing that the escape of the 
"Florida" from Liverpool, in the first instance, was not 
under circumstances which made it an injurious violation of 
neutrality for which Great Britain was responsible to the 
United States, that is to say, that there was no such fault, 
from inattention to evidence, or from delay or inefficiency 
of action, as made Great Britain responsible for her escape; 
and supposing when she entered Liverpool again, as the 
matter then stood in the knowledge of the Government, the 
evidence was clear and the duty was clear, if it were an 
original case; is it to be said that the duty is not as strong, 
that it is not as clear, and that a failure to jjerform it is not 
as clear a case for inculpation, as if in the original outset the 
same circumstances of failure and of fault had been api)arent? 
Certainly the proposition cannot mean this. Certainly the 
conduct of Great Britain in regard to the vessel at Nassau, 
a British port into which she went after her escape from 
Liverpool, does not conform to this suggestion. But if the 
proposition does not come to this then it comes back to the 



598 SPEECHES OF WILLIAM MAXWELL EVARTS 

pretension that the commission intervening terminates the 
obHgation, defeats the duty, and exposes the suffering bel- 
ligerent to all the consequences of this naval war, illegal in 
its origin, illegal in its character, and, on the part of the 
offending belligerent, an outrage upon the neutral that has 
suffered it. 

Now that is the very question to be determined. Un- 
questionably, we submit that while the first clause of the 
first rule is, by its terms, limited to an original equipment or 
outfit of an offending vessel the second clause was intended 
to lay down the obligation of detaining in port and of pre- 
venting the departure, of every such vessel whenever it 
should come within British jurisdiction. I omit from this 
present statement, of course, the element of the effect of 
the "commission," that being the immediate point in dispute. 

I start in the debate of that question with this view of the 
scope and efficacy of the rule itself. 

It is said, however, that the second clause of the first rule 
is to be qualified in its apparent signification and applica- 
tion by the supplying a phrase used in the first clause, which, 
it is said, must be communicated to the second. That quali- 
fying phrase is "any vessel which it has reasonable ground to 
believe is intended," etc. 

Now, this qualification is in the first clause, and it is not 
in the second. Of course, this element of having "reason- 
able ground to believe" that the offence which a neutral na- 
tion is required to prevent is about to be committed, is an 
element of the question of due diligence always fairly to be 
considered, always suitably to be considered in judging 
either of the conduct of Great Britain in these matters, or of 
the conduct of the United States in the past, or of the duty 
of both nations in the future. As an element of due dih- 
gence, it finds its place in the second clause of the first rule, 
but only as an element of due diligence. 

Now, upon what motive does this distinction between the 



THE ALABAMA CLAIMS 599 

purview of the first clause and of the second clause rest? 
Why, the duty in regard to these vessels embraced in the 
first clause applies to the inchoate and progressing enterprise 
at every stage of fitting out, arming or equipping, and while 
that enterprise is, or may be, in respect to evidence of its 
character, involved in obscurity, ambiguity and doubt. It 
is, therefore, provided that, in regard to that duty, only such 
vessels are thus subjected to interruption in the progress of 
construction at the responsibility of the neutral, as the neu- 
tral has "reasonable ground to believe" are intended for an 
unlawful purpose, which purpose the vessel itself does not 
necessarily disclose either in regard to its own character or 
of its intended use. But, after the vessel has reached its 
form and completed its structure, why then it is a suSicient 
limitation of the obligation and sufficient protection against 
undue responsibility, that "due diligence to prevent" the 
assigned offence is alone required. Due diligence to accom- 
plish the required duty is all that is demanded and accord- 
ingly that distinction is preserved. It is made the clear and 
absolute duty of a nation to use due diligence to prevent the 
departure from its jurisdiction of any vessel intended to 
cruise or carry on war against a power with which it is at 
peace, such vessel having been specially adapted in whole or 
in part within such jurisdiction to warlike use. That is, 
when a vessel has become ready to take the seas, having its 
character of warlike adaptation thus determined and thus 
evidenced, so upon its subsequent visit to the neutral's port, 
as to such a vessel, the duty to arrest her departure is limited 
only by the — 

Chief Justice Cockburn: What should you think, Mr. 
Evarts, of such a case as this? Suppose a vessel had es- 
caped from Great Britain with or without due diligence 
being observed— take the case of the "Florida" or the 
"Shenandoah" — take either case. She puts into a port 
belonging to the British Crown. You contend, if I under- 



600 SPEECHES OF WILLIAM MAXWELL EVARTS 

stand your argument, that she ought to be seized. But 
suppose the authorities at the port into which she puts are 
not aware of the circumstances under which the vessel 
originally left the shores of Great Britain. Is there an ob- 
ligation to seize that vessel?" 

Mr. Evarts: That, like everything else, is left as matter 
of fact. 

The Chief Justice: But suppose the people at the place 
are perfectly unaware from whence this vessel — 

Mr. Evarts: I understand the question. We are not call- 
ing in judgment the authorities at this or that place. We are 
calling into judgment the British nation, and if the ignorance 
and want of knowledge in the subordinate officials at such a 
port can be brought to the fault of the Home Government 
in not advising or keeping them informed, that is exactly 
the condition from which the responsibility arises. It is a 
question of "due diligence," or not, of the nation in all its 
conduct in providing, or not providing, for the situation, and 
in preparing, or not preparing, its officials to act upon suit- 
able knowledge. 

We find nothing of any limitation of this second clause of 
the first rule that prevents our considering its proper appli- 
cation to the case of a vessel, which, for the purpose of the 
present argument, it must be conceded ought to be arrested 
under it, and detained in port if the "commission" does not 
interpose an obstacle. 

We have laid down at pages from 331 to 333, in our argu- 
ment!, what we consider the rules of law in regard to the 
effect of the "commission" of a sovereign nation, or of a 
belligerent not recognized as a sovereign, in the circumstances 
involved in this inquiry. They are very simple. I find 
nothing in the argument of my learned friend, careful and 
intelligent as it is, that disturbs these rules as rules of law. 
The public ship of a nation, received into the waters or ports 
of another nation is, by the practice of nations, as a conces- 



THE ALABAMA CLAIMS 601 

sion to tlie sovereign's dignity, exempt from the jurisdiction 
of the courts and all judicial process of the nation whose 
waters it visits. This is a concession, mutual, reciprocal 
between nations having this kind of intercourse, and resting 
upon the best and surest principles of international comity. 
But there is no concession of extra-territoriality to the effect 
or extent that the sovereign visited is predominated over by 
the sovereign receiving hos]:)itality to its public vessels. The 
principle simply is, that the treatment of the vessel rests 
upon considerations between the nations as sovereign, and 
in their political capacities, as matter to be dealt with di- 
rectly between them, under reciprocal responsibility for of- 
fence on either side, and under the duty of preserving rela- 
tions of peace and good will if you please, but, nev(Ttheless, 
to be controlled by reasons of state. 

Any construction of the rule that would allow the visiting 
vessel to impose its own sovereignty upon the sovereign 
visited, would be to Dush the rule to an extreme that would 
defeat its purpose. It is the equality of sovereigns that 
requires that the process and the jurisdiction of courts should 
not be extended to public vessels. 

But all other qualifications as to how the sovereign visited 
shall deal with public vessels, rest in the discretion of the 
sovereign. If offence is committed by such vessels, or any 
duty arises in respect to them, he, at his discretion and under 
international responsibility, makes it the subject of remon- 
strance, makes it the subject of resentment, makes it the 
subject of reprisal, or makes it the subject of an immediate 
exercise of force, if the circumstances seem to exact it. 

What, then, is the tenor of the authorities, in respect to a 
public vessel not of a sovereign, but of a belligerent, who has 
not been recognized as a sovereign? The courts of the coun- 
try, w^hen the question arises as a judicial one, turn to the 
political authority, and ask how that has determined the 
question of the pubhc character of such vessels; antl if that 



602 SPEECHES OF WILLIAM MAXWELL EVARTS 

question (which is a poHtical one) has been determined in 
recognition of the belligerency, then the vessel of the bellig- 
erent is treated as exempt from judicial process and from the 
jurisdiction of the courts. But that vessel remains subject 
to the control, subject to the dominion of the sovereign 
whose ports it has visited, and it remains there under the 
character of a limited recognition, and not in the public 
character of a representative of recognized sovereignty. 

We understand the motives by which belligerency is rec- 
ognized while sovereignty is refused. They are the motives 
of humanity : they are the motives of fair play ; they are the 
motives of neutral recognition of the actual features of the 
strife of violence that is in progress. But it is in vain to 
recognize belligerency and deny sovereignty, if you are going 
to attract one by one all the traits of sovereignty, in the rela- 
tions with a power merely recognized as belligerent and to 
whom sovereignty has been denied. 

What is the difference of predicament? Why, the neutral 
nation, when it has occasion to take offence or exercise its 
rights with reference to a belligerent vessel not representing 
a sovereign, finds no sovereign behind that vessel to which 
it can appeal, to which it can remonstrate, by which through 
diplomacy, by which through reprisals, by which in resent- 
ments, it can make itself felt, its dominion respected, and its 
authority obeyed. It then deals with these belligerent ves- 
sels, not unjustly, not capriciously, for injustice and caprice 
are wrong toward whomsoever they are exercised, but, 
nevertheless, upon the responsibility that its dealing must 
reach the conduct, and that the vessel and its conduct are 
the only existing power and force to which it can apply 
itself. 

I apprehend that there is no authority from any book that 
disturbs in the least this proposition, or carries the respect 
to belligerent vessels beyond the exemption from jurisdic- 
tion of courts and judicial process. The rule of law being 



THE ALABAMA CLAIMS 603 

of this nature, the question, then, of how a neutral shall deal 
with one of these cruisers that owes its existence to a viola- 
tion of its neutral rights, and then presents itself for hospi- 
tality in a port of the neutral, is a question for the neutral 
to determine according to its duty to itself, in respect to its 
violated neutrality and its duty to the sovereign belligerent, 
who will lay to its charge the consequences and the respon- 
sibility for this offending belligerent. 

Now, I find in the propositions of the eminent Counsel a 
clear recognition of these principles of power on the part of 
the sovereign, and of right on the part of the sovereign, re- 
quiring only that the power should be exercised suitably, and 
under circumstances which will prevent it from working op- 
pression or unnecessary injury. That makes it a question, 
therefore, as to the dealing of the sovereign for which the 
law of nations applies no absolute rule. It then becomes a 
question for the Tribunal whether (under these circum- 
stances of cruisers, that owe their origin, or their power to 
commit these injuries, to their violation of neutrality), Great 
Britain is responsible to the injured sovereign, the United 
States, for this breach of neutrality, for this unlawful birth, 
for this unlawful support of these offending cruisers. As to 
what the duty of a neutral nation is in these circumstances 
and in these relations, when the offending cruiser is again 
placed within its power, I find really no objection made to 
the peremptory course we insist upon, except that seizing 
such a vessel, ivithout previous notice, would be impolite, 
would be a violation of comity, would be a violation of the 
decorous practice of nations, and would be so far a wrong. 

Well, let us not discuss these questions in the abstract 
merely; let us apply the inquiry to the actual conduct of 
Great Britain in the actual circumstances of the career of 
these cruisers. If Great Britain claimed exemption from 
liability to the United States by saying that, when these 
cruisers had, confessedly, in fact escaped in violation of 



604 SPEECHES OF WILLIAM MAX^VELL EVARTS 

neutrality, and confessedly were on the seas propagating 
those enormous injuries to the property and commerce of a 
friendly nation, it had promptly given notice that no one of 
them should ever after enter its ports, and that, if it did 
enter its ports, it would be seized and detained, then this 
charge that the conduct of Great Britain towards these 
cruisers in their subsequent visits to its ports, was such as to 
make it responsible for their original escape or for their sub- 
sequent career, would be met by this palliation or this de- 
fence. But no such case arises upon the proofs. You have 
then, on the one hand, a clear duty towards the offended 
belligerent, and on the other only the supposed obligation of 
courtesy or comity towards the offending belligerent. This 
courtesy, this comity, it is conceded, can be terminated at 
any time at the will of the neutral sovereign. But this 
comity or this courtesy has not been withdrawn by any 
notice, or by any act of Great Britain, during the entire 
career of these vessels. 

We say then, in the first place, that there is no actual situ- 
ation which calls for a consideration of this palliative de- 
fence; because the circumstances do not raise it for considera- 
tion. On the contrary, the facts as recorded show the most 
absolute indifference, on the part of Great Britain, to the 
protracted continuance of the ravages of the "Alabama" and 
of the "Florida," whose escape is admitted to be a scandal 
and a reproach to Great Britain, until the very end of the 
war. 

And, yet, a subtraction of comity, a withdrawal of cour- 
tesy was all that was necessary to have determined their 
careers. 

But, further, let us look a little carefully at this idea that 
a cruiser, illegally at sea by violation of the neutrality of the 
nation which has given it birth, is in a condition, on its first 
visit to the ports of the offended neutral, after the commis- 
sion of the offence, to claim the allowance of courtesy or 



THE ALABAJMA CLAIMS (i05 

comity. Can it claim courtesy or comity, by reason of any- 
thing that has proceeded from the neutral nation to encour- 
age that expectation? On the contrary, so far from its l)eiiig 
a cruiser that has a right to be upon the sea, and to l)e a 
claimant of hospitality, it is a cruiser, on the princi])les of 
international law (by reason of its guilty origin, and of tlu* 
necessary consequences of this guilt to be visited u]1(hi the 
offended neutral), for whose hostile ravages the Uritish 
Government is responsible. What courtesy, then, does that 
Government owe to a belligerent cruiser that thus practised 
fraud and violence upon its neutrality and exposed it to this 
odious responsibility.'^ Why does the offending cruiser need 
notice that it will receive the treatment appropriate to its 
misconduct and to the interests and duty of the offended 
neutral? It is certainly aware of the defects of its origin, 
of the injury done to the neutral, and of the responsibihty 
entailed upon the neutral for the injury to the other bel- 
ligerent. We apprehend that this objection of courtesy to 
the guilty cruiser, that is set up as the only obstacle to the 
exercise of an admitted power, that this objection whicli 
maintains that a power just in itself, if executed without 
notice, thereby becomes an imposition and a fraud U])on tlie 
offender, because no denial of hospitality has been pre\'iously 
announced, is an objection which leaves the ravages of such 
a cruiser entirely at the responsibility of the neutral which 
has failed to intercept it. 

It is said in the special argument of the learned Counsel, 
that no authority can be found for this exercise of direct 
sovereignty on the part of an offended neutral towards a 
cruiser of either a recognized or an unrecognized sovereignty. 
But this after all comes only to this, that such an exercise of 
direct control over a cruiser, on the part of an offended neu- 
tral, without notice, is not according to the c<uninon course 
of hospitality for public vessels wliether o[ a rec-ognized 
sovereign or of a recognized belligerent. As to the right to 



606 SPEECHES OF WILLIAM MAXWELL EVARTS 

exercise direct authority on the part of the displeased neu- 
tral, to secure itself against insult or intrusion on the part of 
a cruiser that has once offended its neutrality, there is no 
doubt. 

The argument that this direct control may be exercised by 
the displeased neutral without the intervention of notice, 
when the gravity and nature of the offence against neutrality 
on the part of the belligerent justify this measure of resent- 
ment and resistance, needs no instance and no authority for 
its support. In its nature, it is a question wholly dependent 
upon circumstances. 

Our proposition is, that all of these cruisers drew their 
origin out of the violated neutrality of Great Britain, ex- 
posing that nation to accountability to the United States for 
their hostilities. Now, to say that a nation thus situated is 
required by any principles of comity to extend a notice be- 
fore exercising control over the offenders brought within its 
power, seems to us to make justice and right, in the gravest 
responsibilities, yield to mere ceremonial politeness. 

To meet, however, this claim on our part, it is insisted, in 
this special argument, that the equipment and outfit of a 
cruiser in a neutral port, if it goes out unarmed (though 
capable of becoming an instrument of offensive or defensive 
war by the mere addition of an armament), may be an 
illegal act as an offence against municipal law, but is not a 
violation of neutrality in the sense of being a hostile act, and 
does not place the offending cruiser in the position of having 
violated neutrality. That is but a recurrence to the subtle 
doctrine that the obligations of Great Britain in respect to 
the first rule of the treaty, are not, by the terms of the treaty, 
made international obligations, for the observance of which 
she is responsible under the law of nations, and for the per- 
missive violation of which she is liable, as having allowed, 
in the sense of the law of nations a hostile act to be perpe- 
trated on her territory. 



THE ALABAMA CLAIMS 607 

This distinction between a merely illegal act and a hostile 
act, which is a violation of neutrality, is made, of course, and 
depends wholly, upon the distinction of the evasion of an 
unarmed ship-of-war being prohibited only by municipal law 
and not by the law of nations, while the evasion of an armed 
ship is prohibited by the law of nations. This is a renewal 
of the debate between the two nations as to what the rule of 
the law of nations in this respect was. But this del^ate was 
finally closed by the treaty. And, confessedly, on every 
principle of reason, the moment you stamp an act as a viola- 
tion of neutrality, you include it in the list of acts which by 
the law of nations are deemed hostile acts. There is no act 
that the law of nations prohibits within the neutral jurisdic- 
tion that is not in the nature of a hostile act, that is not in 
the nature of an act of war, that is not in the nature of an 
application by the offending belligerent of the neutral territory 
to the purposes of his war against the other belligerent. The 
law of nations prohibits it, the law of nations punishes it, 
the law of nations exacts indemnity for it, only because it is 
a hostile act. 

Now, suppose it were debatable before the Tribunal 
whether the emission of a war-ship without the addition of 
her armament, was a violation of the law of nations, on the 
same reason, and only on that reason, it would be debatable 
whether it were a hostile act. If it were a hostile act, it was 
a violation of the law of nations; if it were not a violation of 
the law of nations it was not so, only because it was not a 
hostile act. When, therefore the rules of the treaty settle 
that debate in favor of the construction claimed by the 
United States in its antecedent history and conduct, and 
determine that such an act is a violation of the law of na- 
tions, they determine that it is a hostile act. There is no 
escape from the general proposition that the law of nations 
condemns nothing done in a neutral territory unless it is 
done in the nature of a hostile act. And when you debate 



608 SPEECHES OF WILLIAM MAXWELL EVARTS 

the question whether any given act within neutral jurisdic- 
tion is or is not forbidden by the law of nations, you debate 
the question whether it is a hostile act or not. 

Now, it is said that this outfit without the addition of an 
armament is not a hostile act under the law of nations, 
antecedent to this treaty. That is immaterial within the 
premises of the controversy before this Tribunal. 

It is a hostile act against Great Britain, which Great 
Britain — 

Sir Alexander Cockburn: Do I understand you, Mr. 
Evarts, to say that such an act is a hostile act against Great 
Britain.^' 

Mr. Evarts: Yes, a hostile violation of the neutrality of 
Great Britain, which, if not repelled with due diligence, 
makes Great Britain responsible for it as a hostile act within 
its territory against the United States. 

This argument of the eminent Counsel concedes that if an 
armament is added to a vessel within the neutral territory 
it is a hostile act within that territory, it is a hostile expedi- 
tion set forth from that territory. It is therefore a viola- 
tion of the law of nations, and if due diligence is not used to 
prevent it, it is an act for which Great Britain is responsible. 
If due diligence to prevent it be or be not used, it is an offence 
against the neutral nation by the belligerent which has con- 
summated the act. 

A neutral nation, against the rights of which such an act 
has been committed, to wit, the illegally fitting out a war- 
ship without armament (condemned by the law of nations 
as settled by this treaty), is under no obligation whatever of 
courtesy or comity to that cruiser. If, under such circum- 
stances, Great Britain prefers courtesy and comity to the 
offending cruiser and its sponsors, rather than justice and 
duty to the United States, she does it upon motives which 
satisfy her to continue her responsibility for that cruiser 
rather than to terminiate it. Great Britain has no authority 



THE ALABAINIA CLAIMS 609 

to exercise comity and courtesy to these cruisers at the ex- 
pense of the offended belhgerent, the TTnited States, what- 
ever her motives may be. Undoubtedly the authorities 
conducting the rebelHon would not have looked with equal 
favor upon Great Britain, if she had terminated the career 
of these cruisers by seizing them or excluding them from her 
ports. That is a question between Great Britain and I lie 
belligerent that has violated her neutrality. Having the 
powers, having the right, the question of courtesy in giving 
notice was to be determined at the cost of Great Britain and 
not at the expense of the United States. But it ceases to 
be a question of courtesy when the notice has not been given 
at all, and when the choice has thus been made that these 
cruisers shall be permitted to continue their career un- 
checked. 

Now on this question, whether the building of a vessel of 
this kind without the addition of armament is proscribed by 
the law of nations, and proscribed as a hostile act and as a 
violation of neutral territory (outside of the rules of the 
treaty) which is so much debated in this special argument, I 
ask attention to a few citations most of which hnve been 
already referred to in the American case. 

Hautefeuille as cited upon page 170, says: 

Le fait de construire un batiment de guerre pour le conite d'un 
belligerant ou de Farmer dans les etats neutres est une violation du 
territoire. ... II peut egalement reclamer le desarmoinent du 
batiment illegalement arme sur son territoire et meme le detenir, 
s'il entre dans quelque lieu soumis a sa souverainete juscju'a ce 
qu'il ait ete desarme. 

Ortolan, as quoted on page 182 of the same case, ])asses 
upon this situation, which we are now discussing, as follows: 

Nous nous rattacherons. pour resoudre en droit des gens les 
difficultes que presente cette nouvelle situation, a un principe uni- 
versellement etabh, qui se formule en ce peu de mots "inviola- 
bihte du territoire neutre." Get inviolabilite est un droit pour 

41 



610 SPEECHES OF WILLIAM MAXWELL EVARTS 

I'etat neutre, dont le territoire ne doit pas etre atteint par les faits 
de guerre, mais elle impose aussi a ce meme etat neutre une etroite 
obligation, celle de ne pas permettre, celle d'empecher, aetivement 
au besoin, I'emploi de ce territoire par une des parties ou au profit 
de I'une des parties belligerantes dans un but hostile a I'autre 
partie. 

And this very question, the distinction between an armed 
vessel and an unarmed vessel, was met by Lord Westbury, 
in observations made by him, and which are quoted in the 
American case at page 185. He said: 

There was one rule of conduct which undoubtedly civiHzed na- 
tions had agreed to observe, and it was that the territory of a 
neutral should not be the base of military operations by one of two 
belligerents against the other. In speaking of the base of opera- 
tions, he must to a certain degree differ from the noble earl [Earl 
Russell]. It was not a question whether armed ships had actually 
left our shores ; but it was a question whether ships with a view to 
war had been built in our ports by one of two belligerents. They 
need not have been armed; but if they had been laid down and 
built with a view to warlike operations by one of two belligerents, 
and this was knowingly permitted to be done by a neutral power, 
it was unquestionably a breach of neutrality. 

Chancellor Kent, in a passage cited by the learned Coun- 
sel with approval, speaking of the action of the United 
States as shown in the rules of President Washington's ad- 
ministration (which rules are also subsequently quoted with 
approval in this argument) says (Vol. I, p. 122): 

The Government of the United States was warranted by the law 
and practice of nations, in the declaration made in 1793 of the rules 
of neutrality, which were particularly recognized as necessary to 
be observed by the belligerent powers, in their intercourse with 
this country. These rules were that the original arming or equip- 
ping of vessels in our ports, by any of the powers at war, for military 
service, was unlawful; and no such vessel was entitled to an asylum in 
our ports. 



THE ALABAIVIA CLAIMS 611 

No vessel thus equipped was entitled to an asyhnn in the 
ports of the nation whose neutrality had been violated. 
The Tribunal will not fail to observe that these principK's 
were applied by President Washington to cruisers even of an 
independent nation, recognized as a sovereign. Tt was the 
cruisers of France that were under consideration. But tlie 
propositions of this special argument, and the course actually 
pursued by Great Britain, in according its homage to their 
flag placed these insurgent cruisers on a nuich higher and 
more inviolable position than it is possible to concede to 
cruisers of a recognized sovereign. In truth, such treatment 
accorded to such cruisers all the irresponsibility of pirates 
and all the sanctity of public ships of a recognized sover- 
eignty. It accorded the irresponsibility of pirates, l)ecause 
they were exempted from all control, and there was no 
government behind them to be made responsible for them, 
to be resorted to for their correction or restraint, and to 
meet the resentments of the offended neutrals in the shape 
of nonintercourse, of reprisals, or of war. 

The action of Great Britain, under this doctrine of comity 
and notice as applied to the cruisers of this belligerency, 
really exempted them, from the beginning to the end of their 
careers on the ocean, from all responsibility whatever. I low- 
long could such conduct toward Great Britain in violation of 
her neutrality, as was practiced by this belligerent, how 
long could such violations of the neutrality of Great Britain 
have been exercised by belligerent France without remon- 
strance, and if that remonstrance were unheeded, without 
reprisals, followed finally by war? Why was not such re- 
course taken in respect to these cruisers, to the i)0wer behind 
them.'^ There was no power behind them. 

I ask, also, in this connection, attention to 1 Phillimore, 
pages 399 to 404, and, especially, to a passage extracted from 
the case of the "Santissima Trinidad," commentiug upon 
the case of the "Exchange," which last case is cited at con- 



612 SPEECHES OF WILLIAM MAX^VELL EVARTS 

siderable length in the argument of the eminent Counsel. 
Now the "Exchange" settles nothing, except that when the 
political authority of a government has recognized belliger- 
ency, the courts will not exercise jurisdiction over the ves- 
sels although sovereignty has not been conceded as well. 

The only case in the history of our country in which the 
political authority was called upon to deal with a cruiser 
that had derived its origin in violation of oiu- neutrality was 
the case of a public ship of France, the "Cassius,". originally 
"Les Jumeaux." The legal report of this case is copied in 
full in the Appendix of the British case. It never came to 
any other determination than that France, the recognized 
Government of France, was the sponsor for the "Cassius," 
and it was on the respect shown to a sovereign as well as a 
public belligerent that the disposition of the case, exempting 
the vessel from judicial process, was made. 

Sir Roundell Palmer: The vessel was restored. 

Mr. Evarts: But it was only after her character as a war 
vessel had ceased. 

Sir Roundell Palmer: It was the Government of 
the United States, by its executive power, that directed 
the ship to be restored. 

Mr. Evarts: A detailed history of this case, legal and 
political, will be found in Vol. VII of the American Ap- 
pendix, pages 18 to 23, in Mr. Dana's valuable note. 

It will there be seen that the occasion for our Govern 
ment to determine its political or executive action never 
arose until after the determination of the judicial proceedings 
and until after the vessel had been thrown up by the French 
Minister, who abandoned her to the United States Govern- 
ment, nor until after she was a worthless hulk. 

Sir Roundell Palmer: Am I not right in saying that 
the President of the Executive Government of the United 
States gave notice to the French Minister that the ship was 
at his disposal.'' 



THE. ALABAIVIA CLAIMS 613 

Mr. Evarts: After it had been abandoned, after it had 
ceased to be a cruiser capable of hostihties, and after the 
opportunity for its further hostihties liad ceased. 

Lord Tenderden: But the war still continued. 

Mr. Evarts: But, I mean after the hostilities of tliat 
vessel came to an end. 

And permit me to say this condition of things between 
the United States and France, during the atlniinistration of 
the first President Adams, came substantially to a war 
between the two countries.* 

Now, it is said that the application of this second clause 
of the first rule of the treaty, and this demand that deten- 
tion or exclusion shall be exercised in respect to cruisers on 
their subsequent visits to ports, do not apply either to the 
"Georgia" or "Shenandoah," because neither the "Georgia" 
nor "Shenandoah," received their original outfit by violation 
of the territory of Great Britain, not even in the view of 
what would be such a violation taken by the United States. 

*A passage from Mr. Dana's note already referred to, puts this matter in a very 
clear light. 

"As the 'Cassius was taken into judicial custody, within twealy-foiir hours of \wr 
arrival, and remained in that custody, until after she had been disanncti and dis- 
mantled by the French Minister, and formally abandoned by him to the United 
States' Government with a reclamation for damages, the political department of 
the United States' Government never had practically before it the finest ion, wliat 
it would do with an armed foreign vessel of war within its control which iiad, on 
a previous voyage, before it became a vessel of war, and while it was a private 
vessel of French citizens, added warlike equipments to itself within our ports, in 
violation of our statutes for the preservation of our neutrality. When it came out 
of judicial custody, it was a stripped, deteriorated and abandoned hulk, and wa.s 
sold as such by public auction. The only political action of our government con- 
sisted in this: It refused to interfere to take the vessel from the custody of llic 
judiciary, but instructed its attorney to see that the fact of its being a hoiia fide 
vessel of war be proved and brought to the attention of the court, with a motion 
for its discharge from arrest on the ground of its exemption as a j)ul)lic .siiip, if it 
turned out to be so. What course the Executive would have taken as to the vessel, 
if it had passed out of judicial custody before it was abandoned and disMiantle.i, 
does not, of course, appear. And that is the only question of interest to interna- 
tional law." VII American Appendix, p. 23; Choix de Pieces, etc. t. 2. p. 7i(i. 



614 SPEECHES OF WILLIAM MAXWELL EVARTS 

I understand that to be the position. I will not discuss the 
facts of the "Georgia" and "Shenandoah" any more than 
of any other vessel in this regard. If the "Shenandoah" 
and "Georgia," in the conclusions that you shall arrive at 
upon the facts concerning their outfit, shall be pronounced 
in their original evasion not to involve culpability on the 
part of Great Britain, and not to involve violation of Great 
Britain's territory on the part of either of these cruisers — 

Sir Alexander Cockburn: Suppose, Mr. Evarts, that 
the departure was of such a nature as not to involve Great 
Britain in any culpability for want of due diligence, still 
there certainly is a violation of territory. 

Mr. Evarts: That is the point I was coming to and of 
that I entertain no doubt. 

You must find upon the facts that there was no evasion 
from the ports of Great Britain by either of those vessels 
under circumstances amounting to a violation of the neutral- 
ity of Great Britain (on the part of the vessels and on the 
part of those who set them forth), before you bring them 
into the situation where the resentment for a violation of 
neutrality, which I have insisted upon, was not required to 
be exliibited. 

I am not, however, here to discuss the questions of fact. 

I will take up what is made the subject of the third chapter 
of the special argument which has reference to coaling and 
"the base of naval operations" and "military supplies," as 
prohibited by the second rule of the treaty. 

The question of "coaling" is one question considered 
simply under the law of hospitality or asylum to belligerent 
vessels in neutral ports, and quite another considered, under 
given facts and circumstances, as an element in the pro- 
scribed use of neutral ports as "a base of naval operations.'' 

At the outset of the discussion of this subject it is said 
that the British Govermnent dealt fairly and impartially 
in this matter of coaling with the vessels of the two belliger- 



THE ALABAMA CLAIMS 6L5 

ents, and that the real complaint on the part of the United 
States is of the neutrality which Great Britain had chosen to 
assume for such impartial dealing between the two belliger- 
ents. If that were our complaint it is, certainly, out of 
place in this controversy, for we are dealing with the con- 
duct of Great Britain in the situation produced by the 
Queen's Proclamation and there is here no room for dis- 
cussion of any grievance on the part of the United States 
from the public act of Great Britain in issuing that Proclama- 
tion. But nothing in the conduct of the argument on our 
part justifies this suggestion of the eminent Counsel. 

On the subject of ''coaling," it is said that it is not, of 
itself, a supply of contraband of war or of military aid. 
Not of itself. The grounds and occasions on which we com- 
plain of coaling, and the question of fact whether it has been 
fairly dealt out as between the belligerents, connect them- 
selves with the larger subject (which is so fully discussed 
under this head by the eminent Counsel), a topic of discus- 
sion of which coaling is merely a branch, that is to say, the 
use of neutral ports and waters for coaling, victualling, 
repairs, supplies of sails, recruitment of men for navigation, 
etc. These may or may not be obnoxious to censure under 
the law of nations according as they have relation or not 
with facts and acts which, collectively, make up the use of 
the neutral ports and waters as "the bases of naval opera- 
tions" by belligerents. Accordingly, the argument of the em- 
inent Counsel does not stop with so easy a disposition of the 
subject of coaling, but proceeds to discuss the whole question 
of base of operations, — what it means, what it does not 
mean, the inconvenience of a loose extension of its meaning, 
—the habit of the United States in dealing with the question 
both in acts of Government and the practice of its cruisers,— 
the understanding of other nations, giving the instances 
arising on the correspondence with Brazil on the subject of 
the "Sumter"; and produces as a result of this inquiry the 



616 SPEECHES OF WILLIAM MAXWELL EVARTS 

conclusion, that it was not the intention of the second rule 
of the treaty to limit the right of asylum. 

In regard to the special treatment of this subject of coal- 
ing provided by the regulations established by the British 
Government in 1862, it is urged that they were voluntary 
regulations, that the essence of them was that they should 
be fairly administered between the parties, and that the 
rights of asylum or hospitality in this regard should not be 
exceeded. Now, this brings up the whole question of the use 
of neutral ports or waters as a "base of naval operations" 
which is proscribed by the second rule of the treaty. 

You will observe that while the first rule applies itself 
wholly to the particular subject of the illegal outfit of a vessel 
which the neutral had reasonable ground to believe was to 
be employed to cruise, etc., or to the detention in port of a 
vessel that was in whole or in part adapted for war — while 
the injunction and duty of the first rule are thus limited, 
and the violation of it, and the responsibility consequent 
upon such violation, are restricted to those narrow subjects, 
the proscription of the second rule is as extensive as the 
general subject, under the law of nations, of the use of ports 
and waters of the neutral as the basis of naval operations, 
or for the renewal or augmentation of military supplies, or 
the recruitment of men. 

What, then, is the doctrine of hospitality or asylum, and 
what is the doctrine which prohibits the use (under cover of 
asylum, under cover of hospitality, or otherwise) of neutral 
ports and waters as bases of naval operations? It all rests 
upon the principle that, while a certain degree of protection 
or refuge, and a certain peaceful and innocent aid, under the 
stress to which maritime voyages are exposed, are not to be 
denied, and are not to be impeached as unlawful, yet any- 
thing that under its circumstances and in its character is the 
use of a port or of waters for naval operations, is proscribed, 
although it may take the guise, much more if it be an abuse, 
of the privilege of asylum or hospitality. 



THE ALABAMA CLAIMS (517 

There is no difference in principle, in nioralit}', or in duty, 
between neutrality on land and neutrality at sea. What, 
then, are the familiar rules of neutrality within the territory 
of a neutral, in respect to land warfare? 

Whenever stress of the enemy, or misfortune, or cowardice, 
or seeking an advantage of refreshment, carries or drives 
one of the belligerents or any part of his forces over the fron- 
tier into the neutral territory, what is the duty of the neutral? 
It is to disarm the forces and send them into the interior till 
the war is over. There is to be no practicing with this (jues- 
tion of neutral territory. The refugees are not com])elled 
by the neutral to face their enemy; they are not delivered 
up as prisoners of war; they are not surrendered to the 
immediate stress of war from which they sought refuge. 
But from the moment that they come within neutral ter- 
ritory they are to become non-combatants, and they are to 
end their relations to the war. There are familiar examples 
of this in the recent history of Europe. 

What is the doctrine of the law of nations in regard to 
asylum, or refuge, or hospitality, in reference to belligerents 
at sea during war? The words' themselves sufficiently 
indicate it. The French equivalent of reldche forcee equally 
describes the only situation in which a neutral recognizes 
the right of asylum and refuge; not in the sense of shipwreck, 
I agree, but in the sense in which the circumstances of 
ordinary navigable capacity to keep the seas, for the purposes 
of the voyage and the maintenance of the cruise, render the 
resort of vessels to a port or ports suitable to, and convenient 
for, their navigation, under actual and bona fide circum- 
stances requiring refuge and asylum. 

There is another topic which needs to- be adverted to 
before I apply the argument. I mean tlie distinction 
between commercial dealing in the uncom])ined materials of 
war, and the contribution of such uncombined materials of 
war, in the service of a belligerent, in making up military 



618 SPEECHES OF WILLIAM MAXWELL EVARTS 

and naval operations, by the use of neutral territory as the 
base of those contributions. What are really commercial 
transactions in contraband of war, are allowed by the prac- 
tice of the United States and of England equally, and are 
not understood to be proscribed, as hostile acts, by the law of 
nations, and it is agreed between the two countries that the 
second rule is not to be extended to embrace, by any large- 
ness of construction, mere commercial transactions in con- 
traband of war. 

Sir Alexander Cockburn: Then I understand you to 
concede that the private subject may deal commercially 
in what is contraband of war.f* 

Mr. Evarts: I will even go further than that and say 
that commercial dealings or transactions are not proscribed 
by the law of nations, as violations of neutral territory, 
because they are in contraband of war. Therefore I do not 
need to seek any aid, in my present purpose, of exhibiting 
the transactions under the second rule by these cruisers, as 
using Great Britain as the base for these naval operations, 
from any construction of that rule which would proscribe 
a mere commercial dealing in what is understood to be con- 
traband of war. Such is not the true sense of the article, 
nor does the law of nations proscribe this commercial deal- 
ing as a hostile act. But whenever the neutral ports, places 
and markets, are really used as the bases of naval operations, 
when the circumstances show that resort and that relation 
and that direct and efficient contribution and that com- 
plicity, and that origin and authorship, which exhibit the 
belligerent himself, drawing military supplies for the purpose 
of his naval operations from neutral ports, that is a use by a 
belligerent of neutral ports and waters as a base of his naval 
operations, and is prohibited by the second rule of the treaty. 
Undoubtedly the inculpation of a neutral for permitting this 
use, turns upon the question whether due diligence has been 
used to prevent it. 



THE ALABAMA CLAIMS 619 

The argument upon the other side is, that the meaning of 
"the base of operations," as it has been understood in 
authorities rehed upon by both nations, does not permit tlie 
resort to such neutral ports and waters for the purpose of 
specific hostile acts, but proceeds no further. The illustra- 
tive instances given by Lord Stowell, or by Chancellor 
Kent, in support of the rule are adduced as being the measure 
of the rule. These examples are of this nature: A vessel 
cannot make an ambush for itself in neutral waters, cannot 
lie at the mouth of a neutral river to sallv out to seize its 
prey; cannot lie within neutral waters and send its boats to 
make captures outside their limits. All these things are 
proscribed. But they are given as instances, not oi flagrant, 
but of incidental and limited use. They are the cases that 
the commentators cite to show that even casual, temporary 
and limited experiments of this kind are not allowed, and 
that they are followed by all the definite consequences of an 
offence to neutrality and of displeasure to a neutral, to wit, 
the resort by such neutral power to the necessarj^ methods 
to punish and redress these violations of neutral territor3^ 

Now, let us see how we may, by examples, contrast the 
asylum or hospitality in matter of coal or similar contribu- 
tions in aid of navigable capacity, with the use of neutral 
ports as a base of naval operations. 

I will not trespass upon a discussion of questions of fact. 
The facts are wholly within your judgment and are not 
embraced in the present argument. But take the coaling 
of the "Nashville." The "Nashville" left Charleston 
under circumstances not in dispute, and I am not now con- 
sidering whether Great Britain is or is not responsible in 
reference to that ship in any other matter than that of coal- 
ing, which I will immediately introduce to your attention. 

The "Nashville" having a project of a voyage from 
Charleston, her home port, to Great Britain, in the course 
of which she proposed to make such captures as might be, 



620 SPEECHES OF WILLIAM MAXWELL EVARTS 

intended originally to carry out Mason and Slidell, but 
abandoned this last intention before sailing, as exposing 
these Commissioners to unfavorable hazard from the block- 
ading squadron. This was the project of her voyage, those 
the naval operations which she proposed to herself. How 
did she prepare within her own territory, to execute that 
project of naval warfare? She relied substanially upon 
steam, and in order to be sure of going over the bar, under 
circumstances which might give the best chance of eluding 
the vigilance of the blockaders, she took only two days 
supply of coal, which would carry her to Bermuda. The 
coal was exhausted when she got there: she there took in 
six hundred tons. 

Sir Alexander Cockburn: I believe, Mr. Evarts, that 
the figure six afterwards came down to five. 

Mr. Evarts: For the purpose of my present argument, 
it is quite immaterial. 

Mr. Waite: It was subsequently proved to be four hun- 
dred and fifty tons. 

Mr Evarts: Very well. She had no coal and she took 
four hundred and fifty tons or more on board to execute the 
naval operation which she projected when she left Charles- 
ton and did not take the means to accomplish, but relied 
upon getting them in a neutral port to enable her to pursue 
her cruise. Now, the doctrine of reldche forcee, or of refuge, 
or of asylum, or of hospitality, has nothing to do with a 
transaction of that kind. The vessel comes out of a port of 
safety, at home, with a supply from the resources of the 
belligerent that will only carry it to a neutral port, to take 
in there the means of accomplishing its projected naval 
operations. And no system of relief in distress, or of allow- 
ing supply of the means of taking the seas for a voyage 
interrupted by the exhaustion of the resources originally 
provided, have anything to do with a case of this kind. It 
was a deliberate plan, when the naval operation was medi- 



THE ALABA^LV CL.UMS n?l 

tated and concluded upon, to use the ?ieutral port as a base of 
naval operations, which plan was carried out by the actual 
use of neutral territory as proposed. 

Now we say, that if this Tribunal, upon the facts of that 
case, shall find that this neutral port of Bonuuda was j)lanned 
and used as the base of the naval operations, projected at 
the start of the vessel from Charleston, that that is the use of 
a neutral port as a base for naval operations. On wliat 
principle is it not? Is it true that the distance of the pro- 
jected naval operation, or its continuance, makes a difTereiice 
in principle, as to the resort to establish a base in neutral 
territory or to obtain supplies from such a base? \\\\\\ 
certainly not. Why, that would be to proscribe the sli<,'lit 
and comparatively harmless abuses of neutral territory, and 
to permit the bold, impudent and permanent application of 
neutral territory to belligerent operations. I will not delay 
any further upon this illustration. 

Let us take next the case of the "Shenandoah," separating 
it from any inquiries as to culpable escape or evasion from the 
original port of Liverpool. The project of the "Slienan- 
doah's" voyage is known. It was formed within the Con- 
federate territory. It was that the vessel should be armed 
and supplied— that she should make a circuit, passing round 
Cape Horn or the Cape of Good Hope— that she should iml 
herself, on reaching the proper longitude, in a position to 
pursue her cruise to the Arctic Ocean, there to make a prey 
of the whaling fleet of the United States. To i)reak up 
these whaling operations and destroy the fleet, was planned 
under motives and for advantages which seemed to that 
belligerent to justify the expense, and risk, and ix'rils of tlu- 
undertaking. That is the naval operation, and all that was 
done inside the belligerent territory, was to form the projr.l 
of the naval operation and to communicate j.uthonly to 
execute it to the officers who were outside of that territory. 

Now, either the "Shenandoah," if she was to be obtauud. 



622 SPEECHES OF WILLIAM MAXWELL EVARTS 

prepared, armed, furnished, and coaled for that extensive 
naval operation, was to have no base for it at all, or it was 
to find a base for it in neutral ports. It is not a phantom 
ship, and it must have a base. Accordingly, as matter of 
fact, all that went to make up the execution of that operation 
of maritime war, was derived from the neutral ports of 
Great Britain. The ship was thence delivered and sallied 
forth— 

Sir Alexander Cockburn: But that was not known 
to the Government. 

Mr. Evarts: I am now only showing that this occurred 
as matter of fact. The question whether it was known to, 
or permitted by, the Government of Great Britain, as the 
Chief Justice suggests, is of an entirely different aspect, 
involving the considerations of due diligence to prevent. 

The ship, then, was furnished from neutral ports and 
waters. It resorted to Madeira to await the arrival of the 
"Laurel," which, by concert and employment in advance of 
the sailing of the "Shenandoah," was to take the armament, 
munitions of war, officers and a part of the crew to complete 
the "Shenandoah's" fitness to take the seas as a ship of war 
to execute the naval project on which she originally sailed, 
and which were transferred from ship to ship at sea. The 
island of Madeira served only as rendezvous for the two ves- 
sels and if there had been occasion, as in fact there was not, 
might have furnished shelter from storms. Thus made a 
fighting ship from these neutral ports, as a base, and fur- 
nished from the same base with the complete material for the 
naval operation projected, the "Shenandoah" made cap- 
tures, as without interruption of her main project she might, 
rounded the Cape of Good Hope and came to Melbourne, 
another British port, whence she was to take her last de- 
parture for her distant field of operations, the waters of the 
whaling fleet of the United States in the Arctic Ocean. 

Sir Round ell Palmer: I did not, Mr. Evarts, enter 
upon a treatment of each of the vessels. 



THE ALABAMA CLAIMS G23 

Mr. Evarts: I am only showing that this ship did use 
your ports for the purposes of its operations. 

Sir Roundell Palmer: But, Mr. Evarts, I only men- 
tioned these vessels. 

Mr. EVarts: You discussed the question of base of 
naval operations. 

There she obtained as matter of fact four hundred and 
fifty tons of coal, or something of that kind, and forty men, 
and without both of these, as well as important rej)airs of 
her machinery, she could hot have carried out the naval ])ro- 
ject on which she had started. The coal taken at Mel- 
bourne was sent by appointment from Liverpool, and was 
there to complete her refitment. The naval operation would 
have failed if the vessel had not received the replenishment 
of power and resources at Melbourne as a base. Now, this 
"Shenandoah" was able to sail sixteen knots an hour. 

Sir Alexander Cockburn: Do you mean to say six- 
teen knots an hour? That is faster than any vessel I have 
ever heard of. 

Mr. Evarts: Well, we will not dispute about the facts. 
There is no doubt, however, that it is so, — she sailed on 
one occasion over three hundred and twenty miles in twenty- 
four hours. 

Lord Tenterden: But that is not sixteen knots an hour. 

Mr. Evarts: I have not said that she had sailed twenty- 
four consecutive hours at the rate of sixteen knots. But she 
could sail sixteen knots an hour, and she could onlj' steam 
ten knots an hour. I have not invented this. Her remark- 
able qualities are stated in the proofs. Her steam power 
was not necessary to her navigation or her speed, however, 
except to provide against calms, and give assurance of con- 
stancy of progress in adverse weather. Her great aflvan- 
tage, however, was in being one of the fastest sailing ships 
ever built. The great importance of her having a))un(iance 
of coal at the contemplated scene of her naval operations 



624 SPEECHES OF WILLIAM MAXWELL EVARTS 

was, that she might capture these poor whalers, who under- 
stood those perilous seas, and if they could only get up steer- 
age way, would be able to elude her. 

Sir Alexander Cockburn: What! if she sailed six- 
teen knots an hour! 

Mr. Evarts: If the Chief Justice will mark the circum- 
stances of Arctic navigation, he will understand that by 
means of their knowledge of the ice, and the region gener- 
ally, they could seek shelter by interposing barriers between 
themselves and their pursuer. They did, however, become 
her prey; but it was only when she found them becalmed. 
Now, this case of the "Shenandoah" illustrates, by its career, 
on a large scale, the project of a belligerent in maritime war, 
which sets forth a vessel and furnishes it complete for war, 
plans its naval operations and executes them, and all this 
from neutral sports and waters, as the only base, and as a suffi- 
cient base. Melbourne was the only port from which the 
"Shenandoah" received anything after its first supply from 
the home ports of Great Britain, and it finally accomplished 
the main operation of its naval warfare by means of the coal- 
ing, and other refitment at Melbourne. Whether it could 
rely for the origin of its naval power, and for the means of ac- 
complishing its naval warfare, upon the use of neutral ports 
and waters, under the cover of commercial dealings in contra- 
band of war, and under the cover of the privilege of asy- 
lum, was the question which it proposed to itself and which 
it answered for itself. It is under the application of these 
principles that the case of the "Shenandoah" is supposed to 
be protected from being a violation of the law of nations, 
which prohibits the use of ports and waters of a neutral as a 
base of naval operations. I do not propose to argue upon 
the facts of the case of the "Shenandoah," but only to sub- 
mit the principles on which they are to be considered. 

Sir Alexander Cockburn: I would like to ask you, 
Mr. Evarts, whether your proposition involves this: that 



THE ALABAMA CLAIMS 625 

every time a belligerent steam-vessel puts into a neuliiii purl 
for the purpose of getting coal, and then goes forward upon 
her further object of war, that there is a violation of neutral 
territory. I just want to draw your attention to tliis point. 
What I want to understand is, what difference there is be- 
tween the ships of one nation and the ships of another na- 
tion, as regards this matter of coal. Would the princijjle 
of your argument apply to the vessels of other belligerents? 

Mr. Evarts: Of course, it is to be applied to all bellig- 
erents, and when the case arises for complaint it is to be 
judged in view of all the facts and circumstances, whether it 
falls within the license of hospitality, or whether it is a re- 
sort as to a base of operations, that is to say, whether I lie 
whole transaction, in all its features amounts to a concerted 
and planned use. 

Sir Alexander Cockburn: Planned by whom? 

Mr. Evarts : Why, planned by the belligerent. 

Sir Alexander Cockburn: A ship goes into a neutral 
port without intimating its purpose or disclosing whether it 
belongs to one belligerent or another. 

Mr. Evarts: Take the case of the "Nashville." 

Lord Tenterden: Take the "Vanderbilt." 

Sir Alexander Cockburn: Well, let us take that case. 
She goes into a neutral port and wants coal for the purj)ose 
of going forth again on her mission of war. No question 
is asked. The ship, I grant you, comes with the object of 
getting coal for the purpose of going out on her errand of 
war, and, in one sense, uses neutral territory as a base. 
But the neutral knows nothing about the course of the \es- 
sel, or its destination, except he takes it for granted it is a 
ship of war. How can he be said to allow the territory to be 
made a base of operations, except so far as it api)lies to the 
ships of a belligerent? 

Mr. Evarts: It does apply; but I have not said that this 
alone rendered the neutral responsible. I have merely laid 

42 



626 SPEECHES OF WILLIAM MAXWELL EVARTS 

down the facts. The magnitude of the operations and the 
completeness of their relations to the base of supplies, do not 
alter the application of principles. After all there is left, of 
course, the question of whether you have suffered or allowed 
these things, or have used due diligence to prevent them, and 
upon the discussion of that subject I shall not trespass. 

Sir Alexander Cockburn: But that is the very ques- 
tion. 

Mr. Evarts: But that question could not arise until it 
was determined whether the belligerent had, as matter of 
fact, made the neutral port a base of operations. All that 
I have said has been intended to show that what was done 
by these cruisers did make the neutral ports a base, just as 
much as if a shallop was stationed at the mouth of a neutral 
river, and sent out a boat to commit hostilities: In either 
case, the neutral is not responsible, unless it has failed to 
exercise due diligence. But there is this further conse- 
quence carrying responsibility, that when the neutral does 
not know of such an act until after it has been committed, 
it is its duty to resent it and to prevent its repetition, and to 
deny hospitality to the vessels that have consummated it. 
Now, these questions can certainly be kept distinct. If the 
fact is not known, and if there is no want of due diligence, 
then the neutral is not in fault. If the facts are afterwards 
known, then the cruiser that has committed the violation of 
neutrality is to be proscribed, to be denied hospitality, to be 
detained in port, or excluded from port, after notice, or 
without notice, as the case may be. 

The question then arises whether a nation, thus dealt with 
by a belligerent, and having the power to stop the course of 
naval operations thus based, if it purposely omits so to do, 
does not make itself responsible for their continuance. I 
do not desire to be drawn into a discussion upon the facts 
which is not included in the range of the present argument. 
I, now, am simply endeavouring to show that the illustra- 



THE ALABA^L\ CLAIMS 027 

tions of Kent and Stowell taken from navigation, and mari- 
time war, then prevailing, do not furnish the rule or llic 
limit of the responsibihty of neutrals in respect of allowing 
such use of naval bases, nor of the circumstances which make 
up the prohibited uses of neutral ports for such bases. 

I proceed to another branch of the subject.* 

It is said that the concerted setting forth of the "Laurel" 
from the neutral port, to carry the armament and the muni- 
tions of war and the officers and the crew to be combined out- 
side the neutral jurisdiction with the "Shenandoah," al- 
ready issued from another port of the same neutral, is only a 
dealing in contraband of war. I deny that such a transaction 
has any connection with dealing in contraband of war. It 
is a direct obtaining by a projected cruiser of its supply 
of armament, munitions and men and officers from a neutral 
port. 

There may be no fault on the part of the neutral in not 
preventing it. That will depend on the question of "due 
diligence to prevent," "reasonable ground to believe," etc. 
But the principle of contraband of war does not protect such 
a transaction, and that is the only principle that has been ap- 
pealed to by the British Government, in the discussions of 
this matter to justify it. The facts of this vessel going out 
were known, — 

Sir Alexander Cockburn: Not until afterwards. 

Mr. Evarts: The law of nations was violated, your ter- 
ritory had been used, as matter of fact, we claim, as the base 

*In connection with this discussion, I ask attention to the course taken by the 
Government of Brazil in resentment and punishment for the incidental v.olatK.n 
of its neutrality by the "Florida" (^N-ithin the neutral waters) an<l by the "Sl.enan- 
doah," by her commander violating the Consular seal of Brazil on board one of t u- 
" Shenandoah's" prizes. In both instances, the offen.ling cruisers were perpetually 
excluded from the ports of the empire; and the exclusion embniced any otiier 
cruiser that should be commanded by the captain of the "SI.enan.loah. 

The treatment of the "Rappahannock" by tl.e rrenci. (;..vcnmuM.t. wln.-b 
detained her in port till the close of the war, is well worthy »f altcntiou. 1 He 
transaction is detailed in the App- Am. C9unte^Case, pp. 917 5)40. 



628 SPEECHES OF WILLIAM MAXW'ELL EVARTS 

of naval operations, and it was not a dealing in contraband of 
war. It was not a commercial transaction. It was a direct 
furnishing of a cruiser with armament from your port. 
It might as well have been accomplished within three miles 
of your coast. Yet, it is said this is no offence against your 
law. 

Sir Alexander Cockburn: I do not say that. 

Mr. Evarts: Unfortunately for the United States, 
through the whole war, we had quite other doctrine from 
those who laid doTNTi the law for Great Britain in these mat- 
ters. Fortunately, we have better doctrine here and now. 
But according to the law as administered in England such 
combinations of the materials of naval war could be made 
outside of her ports, by the direct action of the belligerent 
Government, deriving all the materials from her ports and 
planning thus to combine them outside. 

Sir Alexander Cockburn: If that had been shown. 

Mr. Evarts: The proofs do show it, and that the doc- 
trine was, that it was lawful and should not be interfered 
with. 

I disclaim any desire or purpose of arguing upon the facts 
of particular vessels. I am merely laying down principles 
applicable to supposed facts. If the principles were con- 
ceded, I would have no occasion to deal with questions of 
fact at all. 

The learned Chief Justice has, very satisfactorily, cer- 
tainly, to us, presently expressed certain legal opinions on 
this subject; but I must say that they were not entertained 
by the Government of Great Britain, and did not control its 
action. 

I think that the proofs before the Tribunal can be easily 
referred to, to confirm the position I have taken, as to the 
legal doctrine held in England in reference to this subject of 
the base of operations. In contradiction of that doctrine, 
we now insist, a§ our Government all through the war in- 



THE AL/VBAMA CLAIMS 0*20 

sisted, this is not dealing in contraband of war; it is using 
neutral territory as a base of operations. AVhethcr there 
was, or should be, no responsibility for it, because it w :is not 
known or could not be prevented, is an entirely (iifferent 
question. But I undertake to say as matter of fact, that the 
doctrine of the English law, during all those jiroceec lings, 
was, that such projects and their execution as a contributory 
concurrence with the outfit of the princij^al cruisers for naval 
operations (such cases as those of the "Laurel," the "Alar." 
the "Agrippina," the "Bahama" and similar vessels) were 
lawful and could not and should not be preventetl. 

Sir Alexander Cockburn: I would be .very nuicli 
obliged if you will refer me to some authority for that. 

Mr. Evarts: I will. One of the arbitrators (Mr. 
Adams) from his knowledge of the course of the corres- 
pondence, knows that I do not deceive myself in that resi)ec-t. 
It is this contributory furnishing of armament, and muni- 
tions, and men, which rendered the principal cruisers viW- 
cient instruments of all the mischief, and without which their 
evasions from port were of little consequence, and, without 
the expectation of which, they never would have been 
planned. 

I now refer to a paper that will show that I have been right 
in my proposition as to the construction of English law as 
held during the occurrence of these transactions. 

In Vol. Ill of American Appendix (p. 53), in a report to 
the Board of Trade by the Commissioners of Customs, oc- 
curs this passage: 

Custom House, September -25, 18(i'2. 

Your lordships having, by Mr. Arbuthnol's letter of the Kill, 
instant, transmitted to us, with reference to Mr. Hamilton's 
letter of the 2d ultimo, the enclosed eommunieation from the 
Foreign Office, with copies of a further letter and its enclosures 
from the United States Minister at tiiis Court, rcspec-tiuK the sup- 
ply of cannon and munitions of war to the gunboat No. '-»!»(>. 



630 SPEECHES OF WILLIAM MAXWELL EVARTS 

recently built at Liverpool, and now in the service of the so-called 
Confederate States of America; and your lordships having desired 
that we would take such steps as might seem to be required in view 
of the facts therein represented, and report the result to your lord- 
ships, we have now to report : 

That, assuming the statement set forth in the affidavit of Red- 
din (who sailed from Liverpool in the vessel) which accompanied 
Mr. Adams's letter to Earl Russell, to be correct, the furnishing of 
arms, etc., to the gun-boat does not appear to have taken place 
in any part of the United Kingdom or of her Majesty's dominions, 
but in or near Angra Bay, part of the Azores, part of the Portuguese 
dominions. No offence, therefore, cognizable by the laws of this 
country, appears to have been committed by the parties engaged in 
the transaction alluded to in the affidavit. 

From Lord Russell's communication of this report to the 
American Minister, it will be seen that the accepted opinion 
of the Government was that such operations could not be 
interfered with, and therefore would not be interfered with. 
That may be a correct view of the Foreign Enlistment Act 
of Great Britain, and, hence, the importance of reducing the 
obligations of a neutral nation to prevent violations of 
international law to some settled meaning. 

This was done by convention between the High Contract- 
ing Parties and appears in the rules of the treaty. Under 
these rules is to be maintained the inculpation which we 
bring against Great Britain, and which I have now dis- 
cussed because the subject is treated in the special argument 
to which I am replying. The instances of neutral default 
announced under the second rule, are made penal by the 
law of nations. They are proscribed by the second rule. 
They are not protected as dealings in contraband of war. 
They are not protected under the right of asylum. They 
are uses of neutral ports and waters as bases of naval opera- 
tions, and if not prohibited by the Foreign Enlistment Act, 
and if the British Executive Government could not and would 
not prevent them, and that was the limit of their duty under 



THE ALABAIVIA CLAIMS 631 

their Foreign Enlistment Act, still we come here for judg- 
ment, whether a nation is not responsible that deals thus in 
the contribution of military supplies, that suffers ship after 
ship to go on these errands, makes no effort to stop them, but, 
on the contrary, announces, as the result of the deliberation 
of the law officers, to the subordinate officials, to the Min- 
ister of the United States, to all the world, that these things 
are not prohibited by the law of Great Britain, and cannot be 
prohibited by the Executive Government, and, therefore, 
cannot and will not be stopped. That this was the doctrine 
of the English Government will be seen from a letter dated 
the 2d of April, 1863, of Lord Russell, found, in part, in 
Vol. II, American Appendix, page 404; and, in part, in 
Vol. I, ibid., page 590: 

But the question really is, has there been any act done in Eng- 
land both contrary to the obligations of neutrality as recognized by 
Great Britain and the United States, and capable of being made the 
subject of a criminal prosecution? I can only repeat that, in the 
opinion of Her Majesty's Government, no such act is specified in 
the papers which you have submitted to me. 

***** 

I, however, willingly assure you that, in view of the statements 
contained in the intercepted correspondence, Her Majesty's Gov- 
ernment have reneioed the instructions already given to the custom- 
house authorities of the several British ports where ships of war may 
be constructed, and by the Secretary of State for the Home De- 
partment to various authorities ^dth whom he is in communica- 
tion, to endeavor to discover and obtain legal evidence of any vio- 
lation of the Foreign Enlistment Act, with a view to the strict en- 
forcement of that statute whenever it can really be shown to be 

infringed. 

***** 

It seems clear, on the principle enunciated in these authorities, 
that, except on the ground of any proved violation of the Foreign 
Enlistment Act, Her Majesty's Government cannot interfere with 
commercial dealings between British subjects and the so-styled 



632 SPEECHES OF WILLIAM ]VL\XWELL EVARTS 

Confederate States, whether the subject of those deahngs be money 
or contraband goods, or even ships adapted for warUke purposes. 

These were instances in which complaints were made of 
these transactions, and in which it was answered that the 
British Government charged itself with no duty of due dili- 
gence, with no duty of remonstrance, with no duty of pre- 
vention or denunciation, but simply w^ith municipal prose- 
cutions for crimes against the Foreign Enlistment Act. 

What I have said of the "Shenandoah," distinguished her 
from the "Florida," and the "Alabama," and the "Georgia," 
only in the fact that, from the beginning to the end of the 
"Shenandoah's" career, she had no port of any kind, and 
had no base of any kind, except the ports of the single nation 
of Great Britain. But as to the "Florida" and the "Ala- 
bama," one (the "Alabama") was supplied by a tug, or 
steamer, that took out her armament to Angra Bay, the 
place of her first resort; the other (the "Florida") was sup- 
plied by a vessel sent out to Nassau to meet her, carrying all 
her armament and munitions of war, and which she took out 
in tow, transhipping her freight of war material outside the 
line of neutral waters. 

That is called dealing in contraband, not proscribed by the 
law of nations, not proscribed by any municipal law, and 
not involving any duty of Great Britain to intercept, to dis- 
courage or denounce it. That is confounding substance with 
form. But let me use the language of an Attorney-General 
of England, employed in the Parliamentary discussions which 
attended the enactment of the Foreign Enlistment Act of 
1819. 

From this debate in Parliament, it will be seen what the 
principal law adviser of the Crown then thought of carrying 
on war by commercial transactions. He said : 

Such an enactment was required by every principle of justice; 
for when the State says, "We will have nothing to do with the war 
waged between two separate powers," and the subjects in opposi- 



THE ALABA^L\ CLAIMS 633 

tion to it say, "We will, however, interfere in it," surely the House 
would see the necessity of enacting some penal statutes to prevent 
them from doing so; unless, indeed it was to be contended, that the 
State and the subjects who composed that State, might take dis- 
tinct and opposite sides in the quarrel. lie should now alhide to 
the petitions which had that evening been presented to tiie House 
against the bill; and here he could not but observe, that they had 
either totally misunderstood or else totally misreijrcscntcd its 
intended object. They had stated that it was calculated to c-heck 
the commercial transactions and to injure the commercial interests 
of this country. If by the words "commercial interests and com- 
mercial transactions" were meant "warlike adventures," he al- 
lowed that it would; but if it were intended to argue that it would 
diminish a fair and legal and pacific connnerce, he must enter his 
protest against any such doctnnes. Now, he maintained, that an 
war teas actually carried on against Spain by uliat the petitioners 
called ''commercial transactions," it was the duty of the House to 
check and injure them as speedily as possible. (Note B, American 
Argument, p. 508; Fr. tr. Appendice, p. 488.) 

War against the United States, maritime war, was carried 
on under cover of w^hat was called right of asylum and com- 
mercial transactions in contraband of war. We arc now 
under the law of nations, by virtue of this second rule, which 
says that the use of "ports and waters as the base of naval 
operations, or for the purpose of the renewal or augmenta- 
tion of military supplies or anns or the recruitment of men" 
shall not be allowed, and if the facts of such dealing shall l)e 
found, and the proof of due diligence to prevent them shall 
not appear in the proofs, under that second rule all four of 
these cruisers must be condemned by the Tribunal. 

I do not pass, nor venture to pass, in the present argu- 
ment, upon the question whether there has been in this mat- 
ter a lack of due diligence. In the discussion of my learned 
friend every one of these instances is regarded as a case not 
within the second rule, and as a simple dealing in coiitra- 
band of war. 



634 SPEECHES OF WILLIAM MAXWELL EVARTS 

Sir Roundell Palmer: I must be permitted to say that 
I have not felt myself at liberty to go into a discussion of 
individual cases. 

Mr. Evarts: The vessels are treated in the argument of 
the learned Counsel. 

Sir Roundell Palmer: There may be passages in 
reference to some of the principal topics which have been 
mentioned, but I have avoided entering upon any elaborate 
consideration of each particular vessel. There is no distinct 
enumeration of the vessels. 

Mr. Evarts: There is, so distinct as this; it is expressly 
stated that under the law neither the "Georgia," nor the 
"Shenandoah," nor the subsidiary vessels that carried their 
armaments to the "Georgia" and "Shenandoah," and to the 
"Florida" and "Alabama," had, in so doing, committed a 
breach of neutrality. 

I am arguing now under the second rule. I have not felt 
that I was transcending the proper limits of this debate, be- 
cause, in answer to the special argument of the eminent 
Counsel, I have argued in this way. My own view as to 
the extension of the argument of the learned Counsel in his 
discussion of what is called "due diligence," as a doctrine 
of the law of nations, would not have inclined me to expect 
so large a field of discussion as he covered. But, as I have 
admitted in my introductory remarks, the question of due 
diligence connects itself with the measure of duty and the 
manner in which it was performed, and I felt no difficulty in 
thinking that the line could not be very distinctly drawn. 

I have undertaken to argue this question under a state of 
facts, which shows that a whole naval project is supplied, 
from the first outfit of the cruiser to the final end of the cruise, 
by means of this sort of connection with neutral ports and 
waters as a base of naval operations; and I have insisted 
that such naval operations are not excluded from the pro- 
scription of the second rule, by what is claimed in the argu- 



THE ALABAMA CLAIMS G3a 

ment of the learned Counsel, as the doctrine of contraband 
of war and the doctrine of asylum. 

Second Day, August 6, 1872 

I was upon the point of the doctrine of the British Govern- 
ment, and its action under that doctrine, as l)earing ujxju 
the outfit of the contributory provisions of armament, 
munitions, and men, set forth in such vessels as the "IJa- 
hama," the "Alar," and the "Laurel." The correspond- 
ence is full of evidence that I was correct in my statement 
of the doctrine of the British Government, and of its action 
from beginning to end being controlled by that doctrine; 
and all the remonstrances of the United States were met by 
the answer that the law of nations, the Foreign Enlistment 
Act, the duty of neutrality, had nothing whatever to do 
with that subject, as it was simply dealing in contraband of 
war. The importance of this view, of course, and its im- 
mense influence in producing the present controversy 
between the two nations, are obvious. The whole nu'schief 
was wrought by the co-operating force of the two legal 
propositions: (1) that the unarmed cruiser was not itself a 
weapon of war, an instrument of war, and, therefore, was 
not to be intercepted as committing a violation of the law of 
nations; and (2) that the contributory provision by means 
of her supply ships, of her armament, munitions, and m(>n. 
to make her a complete instrument of naval hostilities, was 
also not a violation of the law of nations, but simply a coiii- 
mercial dealing in contraband. It was only under those 
combined doctrines that the cruiser ever came to be in the 
position of an instrument of offensive and tlefensi\e war, 
and to be able to assume the "commission" jirepared for 
her, and which was thenceforth to i)rotect her from interfer- 
ence on the doctrine of comity to sovereignty. 

So, too, it will be found, when we come to consider the 
observations of the eminent Counsel on the subject of <liie 



636 SPEECHES OF WILLIAM ]VL\XWELL EVARTS 

diligence, to which I shall have occasion soon to reply, that 
the question whether these were hostile acts, under the law 
of nations, was the tiirning point in the doctrine of the 
Government of Great Britain, and of its action, as to whether 
it would intercept these enterprises by the exercise of execu- 
tive power, as a neutral government would intercept any- 
thing in the nature of a hostile act under the law of nations. 
The doctrine was that these were not hostile acts separately, 
and that no hostile act arose unless these separate contribu- 
tions were combined in the ports of Great Britain; that 
there was no footing otherwise for the obligation of the law 
of nations to establish itself upon; that there was no remiss- 
ness of duty on the part of the neutral in respect of them; 
and finally that these operations were not violations of the 
Foreign Enlistment Act. All this is shown by the whole 
correspondence, and by the decisions of the municipal 
courts of England, in regard to the only question passed 
upon at all, that of unarmed vessels, so far as they ever 
passed even upon that question. 

It has seemed to be intimated by observations which the 
learned Counsel has done me the honor to make during my 
present consideration of this topic, that my argument has 
transcended the proper limit of reply to the special argu- 
ment which the eminent Counsel himself has made on the 
same topic. A reference to the text of that argument will, 
I think, set this question at rest 

In the fifteenth section of the first chapter of his argu- 
ment, he does us the honor to quote certain observations in 
our principal argument to which he proposes to reply. He 
quotes, at page 17 of his argument, as follows: 

(2) The next great failure of Great Britain "to use due dili- 
gence to prevent" the violation of its neutrality, in the matters 
within the jurisdiction of the Tribunal, is showTi in its entire omis- 
sion to exert the direct executive authority, lodged in the Royal 
Prerogative, to intercept the preparations and outfits of the offend- 



THE ALABAALV CLAIMS 637 

ing vessels, and the contributory provisions, of armament, muni- 
tions and men, which were emitted from various ports of the 
United Kingdom. 

We do not find in the British case or counter-case, any serious con- 
tention, but that such powers as pertain to tlie prerogative, in the 
maintenance of international relations, and are exercised as such 
by other great powers, would have prevented the escape of every 
one of the offending vessels emitted from British ports, and pre- 
cluded the subsidiary aids of warlike equipment and supplies 
which set them forth, and kept them on foot, for the maritime 
hostilities which they maintained. 

The comment of the learned Counsel upon this pa.ssape is 
found on the same page (17) of his argument, as follows: 

With respect to the second passage, it is to be observed, that it 
not only imputes as a want of due diligence, the abstinence from 
the use of arbitrarj' power to supply a supposed deficiency of legal 
powers, but it assumes that the United States had a right, by inter- 
national law, to request Great Britain to prevent the exportation 
from her territory of what it describes as "contributory provisions," 
arms, munitions, and "subsidiary aids of warlike equipment and 
supplies," though such elements of armament were uncombined, 
and were not destined to be combined, within British jurisdiction, 
but were exported from that territory' under the conditions of 
ordinary exports of articles contraband of war. For such a j)reten- 
tion no warrant can be found, either in international law, or in 
any municipal law of Great Britain, or in any one of the three 
rules contained in the sixth article of the treaty of Washington. 

I respectfully submit, therefore, that in the observations 
I have had the honor to make upon this subject, I can 
hardly be said to have exceeded the due limits of an argu- 
ment in reply. I fail to find in what the eminent Counsel 
here advances in behalf of his Government, any answer to 
my assertion that, during the whole cour.se of the war ^a 
period when he, as Solicitor General or as Attorn«'y (;( lu-ral 
of England, was one of the law advisers of the Govemnientj, 



638 SPEECHES OF WILLIAM MAXWELL EVARTS 

the action of Great Britain was governed by the doctrine 
which I have stated. This was pubHcly announced and it 
was so understood by the rebel agents, by the interests 
involved in these maritime hostilities, by the United States 
Minister, by the officials of the British Government, by 
everybody who had to act, or ask for action, in the premises. 

The first instance arising was of the vessel that carried 
out the armament and munitions for the "Alabama," and 
the answer was as I read from the report of the Commission- 
ers of Customs to the Board of Trade. This official paper 
stated that the commissioners found nothing in that affair 
that touched the obligations of Great Britain. This was 
communicated to Mr. Adams, and that, thenceforth, was 
the doctrine and action of the Government of Great Britain. 

The view of an eminent publicist on this point, as a ques- 
tion of international law, may be seen from an extract found 
at page 177 of the case of the United States. M. Rolin- 
Jacquemyns says: 

II nous semble que I'adoption d'une pareille proposition equivau- 
drait a rinclination d'un moyen facile d'eluder la regie qui declare 
incompatible avec la neutralite d'un pays rorganisation, sur son 
territoire d'expeditions militaires au service d'un des belligerants. 
II suffira, s'il s'agit d'une entreprise maritime, de faire partir en 
deux ou trois fois les elements qui la constituent; d'abord le 
vaisseau, puis les hommes, puis les armes, et si tous ces elements 
ne se rejoignent que hers des eaux de la puissance neutre qui 
les a laisses partir, la neutralite sera intacte. Nous pensons que 
cette interpretation de la loi internationale n'est ni raisonable, 
ni equitable. 

It will be, then, for the Tribunal to decide what the law 
of nations is on this subject. If the Tribunal shall assent 
to the principles which I have insisted upon, and shall find 
them to be embraced within the provisions of the three 
rules of this treaty, and that the facts in the case require the 
application of these principles, it stands admitted that 



THE ALABAM\ CLAIMS 6S9 

Great Britain has not used and lias refused to use any means 
whatever for the interruption of these contrihiifory pro- 
visions of armament and munitions to the offendinjx cruisers. 

It is not for me to dispute tlie ruHnf^ of the einiucnt law- 
yers of Great Britain upon their Foreign Knlisfrnciit Act; 
but, for the life of me, I cannot see why the "Alar" aiul the 
"Bahama" and the "Laurel," when they saile<l from tiic 
ports of England with no cargo whatever except the arma- 
ment and munitions of war of one of these cruisers, and with 
no errand and no employment except that of the Kchcl 
Government, through its agents, to transport these anna- 
ments and munitions to the cruisers which awaited them, 
were not "transports" in the service of one of the belligerents 
within the meaning of the Foreign Enlistment Act of Great 
Britain. That, however, is a question of municij)al law. It 
is with international law^ that we are dealing now and here. 
The whole argument to escape the consequences which inter- 
national law visits upon the neutral for its infractions, has 
been, that whatever was blameworthy was so only as an 
infraction of the municipal law of Great Britain. And 
when you come to transactions of the kind I am now discuss- 
ing, as they were not deemed violations of the Foreign Enlist- 
ment Act nor of international law, and as the powers of tiie 
Government by force to intercept, through the exercise of 
prerogative, or otherwise, did not come into play, the argu- 
ment is that there were no consequences whaievcr to n-suit 
from these transactions. They were merely considered as 
commercial transactions in contraband of war. 

But the moment it is held that these things were forbidden 
by the law of nations, then of course it is no answer to .say. 
you cannot mdict anybody for them under the hiw of (Jreat 
Britam. Nor does the law of nations, having hi id down a 
duty and established its violation as a crinu'. furnish iio 
means of redressing the injury or of correcting or punishing 
the evil. What course does it .sanction when neutral terri- 



640 SPEECHES OF WILLIAM MAXWELL EVARTS 

tory is violated by taking prizes within it? When the 
prize comes within the jurisdiction of the neutral, he is auth- 
orized to take it from the offending belligerent by force and 
release it. What course does it sanction when a cruiser 
has been armed within neutral territory? When the vessel 
comes within the jurisdiction of the neutral, he is authorized 
to disarm it. 

Now, our proposition is that these cruisers, thus deriving 
their force for war by these outfits of tenders with their 
armament and munitions and men, when brought within 
the British jurisdiction, should have been disarmed because 
they had been armed, in the sense of the law of nations, by 
using as a base of their maritime hostilities, or their maritime 
fitting for hostilities, the ports and waters of this neutral 
state. 

Why, what would be thought of a cruiser of the United 
States lying off the port of Liverpool, or the port of Ushant 
in France, and awaiting there the arrival of a tender coming 
from Liverpool, or from Southampton, by pre-arrangement, 
with an augmentation of her battery and the supply of her 
fighting crew? Would it, because the vessel had not entered 
the port of Southampton or the port of Liverpool, be less a 
violation of the law of nations which prohibited the augmen- 
tation of the force of a fighting vessel of any belligerent from 
the contributions of the ports of the neutral? 

The fourth chapter of this special argument is occupied, as 
I have already suggested, with the consideration of the true 
interpretation of the rules of the treaty, under general canons 
of criticism, and under the light which should be thrown 
upon their interpretation by the doctrines and practices of 
nations. I respectfully submit, however, that the only 
really useful instruction that should be sought, or can be 
applied, in aid of your interpretation of these rules, if their 
interpretation needs any aid, is to be drawn from the situa- 
tion of the parties, and the elements of the controversy 



THE ALABAMA CLAIMS 641 

between them, for the settlement and composition of whicli 
these rules were framed; and this Tribunal was created to 
investigate the facts and to apply the rules to them in its 
award. 

The whole ground of this controversy is expressed in the 
firmest and most distinct manner by the statesmen, on both 
sides, who had charge of the negotiations between the two 
countries, and who could not misunderstand what were the 
situation and the field of debate for apjjlication to which 
the High Contracting Parties framed these rules. And 
what were they? Why, primarily, it was this very question 
of the various forms of contributory aid from the neutral 
ports and waters of Great Britain, by which the Confederate 
navy had been made, by which it was armed, by which it 
was supplied, by which it was kept on foot, by which, with- 
out any base within the belligerent territory, it maintained a 
maritime war. 

Anterior to the negotiation which produced the treaty, 
there is this public declaration made by Mr. (iladstone, and 
cited on page 215 of the case of the United States, "There 
is no doubt that Jefferson Davis and other leaders of the 
South have made an army; they are making, it appears, 
a navy J' 

There is the speech of Lord Russell on the 26th of April 
1864, also cited on the same page: "It has been usual for a 
power carrying on war upon the seas, to possess ports of its 
own in which vessels are built, equii)i)e(l, and fitted, and 
from which they issue, to which they bring|their i)rizes, and 
in which those prizes, when })rouglit before a court, are either 
condemned or restored. But it so happens that in this 
conflict, the Confederate States have no ports except those 
of the Mersey and of the Clyde, from which they fit out 
ships to cruise against the Federals; and having no ports to 
which to bring their prizes, they are oblige<l lo l.nrn Ihcin 
on the high seas." There is, furthermore, th<- dicLir.ilion 

43 



642 SPEECHES OF WILLIAM MAXWELL EVARTS 

of Mr. Fish, made as Secretary of State, in his celebrated 
despatch of the 25th of September, 1869, in which he dis- 
tinctly proposes to the British Government, in regard to 
the claim of the United States in this controversy, that the 
rebel counsels have made Great Britain "the arsenal, the 
navy-yard, and the treasury of the insurgent Confederates." 

That was the controversy between the two countries, for 
the solution of which the rules of this treaty and the delib- 
erations of this Tribunal were to be called into action; and 
they are intended to cover, and do cover, all the forms in 
which this use of Great Britain for the means and the 
opportunities of keeping on foot these maritime hostilities 
was practised. The first rule covers all questions of the 
outfit of the cruisers themselves; the second rule covers all 
the means by which the neutral ports and waters of Great 
Britain were used as bases for the rebel maritime operations 
of these cruisers, and for the provision, the renewal or the 
augmentation of their force of armament, munitions, and 
men. Both nations so agreed. The eminent Counsel for 
the British Government, in the special argument to which 
I am now replying, also agrees that the second rule, under 
which the present discussion arises, is conformed to the pre- 
existing law of nations. 

We find, however, in this chapter of the special argument, 
another introduction of the retroactive effect, as it is called, 
of these Rules, as a reason why their interpretation should 
be different from what might otherwise be insisted upon. 
This is but a reappearance of what I have already exposed 
as a vice in the argument, viz., that these rules, in respect to 
the very subject for which they were framed, do not mean 
the same thing as they are to mean hereafter, when new 
situations arise for their application. Special methods of 
criticism, artificial limits of application are resorted to, to 
disparage or distort them, as binding and authoritative 
rules, in regard to the past conduct of Great Britain. Why, 



THE ALABA^L\ CLABIS G48 

you might as well tear the treaty in pieces, as to introduce 
and insist upon any proposition, whether of interpretation 
or of application, which results in the demand that the very 
controversy for which they were framed is not really to he 
governed by the rules of the treaty. 

The concluding observation of this chapter that tlie invita- 
tion to other powers to adopt these rules as binding upon 
them, contained in the treaty, should discourage a forced 
and exaggerated construction of them, I assent to; not so 
much upon the motive suggested, as upon the i)rinciple that 
a forced and exaggerated construction should not be resorted 
to, upon either side, upon any motive whatever. 

I now come to the more general chapter in the argument 
of the learned Counsel, the first chapter, which present.s 
under forty-three sections, a very extensive and very com- 
■prehensive, and, certainly, a very able criticism upon the 
main argument of the United States upon "due diligence," 
and upon the duties in regard to which due tliligence was 
required and in regard to the means for the performance 
of those duties and the application of this due diligence, 
possessed by Great Britain. Certainly, these form a very 
material portion of the argument of the United States; and 
that argument, as I have said, has been subjected to a \-ery 
extensive criticism. Referring the Tribunal to our argu- 
ment itself as furnishing, at least, what we suppose to be a 
clear and intelligible view of our propositions, of tlie grounds 
upon which they rest, of the reasoning which .supports 
them, of the authorities which sustain them, of their api)li- 
cability and of the result which they lead to— the inculpa- 
tion of Great Britain in the matters now uncNr judgnunf. 
we shall yet think it right to i)ass under nx i»\v ;i f.w <.f 
the general topics which are considered in I liis discussion 

of "due diligence." 

The sections from 7 to 16 (the earlier M'clions havnig 
been already considered) are occupied with a discussion of 



644 SPEECHES OF WILLIAM MAXWELL EVARTS 

what are supposed to be the views of the American argu- 
ment on the subject of prerogative or executive power, as 
distinguished from the ordinary administration of authority- 
through the instrumentahty of courts of justice and their 
procedure. Although we may not pretend to have as accu- 
rate views of constitutional questions pertaining to the 
nation of Great Britain, or to the general principles of her 
common law, or of the effect of her statutory regulations 
and of her judicial decisions as the eminent Counsel of her 
Britannic Majesty, yet I think it will be found that the 
criticisms upon our argument in these respects are not, by 
any means, sound. It is, of course, a matter of the least 
possible consequence to us, in any position which we 
occupy, either as a nation before this Tribunal or as lawyers 
in our argument, whether or not the sum of the obligations 
of Great Britain in this behalf under the law of nations was 
referred for its execution to this or that authority under its 
constitution, or to this or that official action under its 
administration. One object of our argument has been to 
show that, if the sum of these obligations was not performed, 
it was a matter of but little importance to us, or to this Tri- 
bunal, where, in the distribution of administrative duty, or 
where, in the constitutional disposition of authority, the 
defect, either of power, or in the due exercise of power, was 
found to be the guilty cause of the result. Yet, strangely 
enough, when, in a certain section of our argument, that is 
laid down as one proposition, we are accused by the learned 
Counsel of a petitio principii, of begging the question, that 
the sum of her obligations was not performed by Great 
Britain. 

With regard to prerogative the learned counsel seems to 
think that the existence of the supposed executive powers 
under the British Constitution, and which our argument 
has assigned to the prerogative of the Crown, savors of 
arbitrary or despotic power. We have no occasion to go 



THE ALABAMA CLAIMS 645 

into the history of the prerogative of the British Crown, or 
to consider through wluit niocUfications it has reacluMl its 
present condition, When a free nation like Great Britain, 
assigns certain functions to be executed by the Crown tlu-re 
does not seem to be any danger to its hberties from tliat 
distribution of authority, when we renieiul)er that Parlia- 
ment has full power to arrange, modify, or curtail llu- 
prerogative at its pleasure, and when every instrument of 
the CrowTi, in the exercise of the prerogative, is subject to 
impeachment for its abuse. 

The prerogative is trusted under the British constitution 
wdth all the international intercourse of peace and war, with 
all the duties and responsibilities of changing peace to war. 
or war to peace, and also in regard to all the international 
obligations and responsibilities which grow out of a declared 
or actual situation of neutrality when hostilities are pending 
betw^een other nations. Of that general proposition there 
seems to be no dispute. But it is alleged that there is a 
strange confusion of ideas in our minds and in our argument, 
in not drawing the distinction between what is thus i)roperly 
ascribable to extra territoriality or ad extra adnu'nistration, 
what deals with outward relations and what has to do with 
persons and property within the kingdom. 'Hi is iirerog- 
ative, it is insisted, gives no power over persons and i>rop- 
erty within the kingdom of Great Britain, and it is further 
insisted that the Foreign Enlistment Act was the whole 
measure of the authority of the Government, and the whoK' 
measure therefore of its duty, within the kingdom. It .s 
said the Government had no power by prerogative to mak<« 
that a crime in the kingdom which is not a crime by tlu- law. 
or of punishing a crime in any other manner than through 
the courts of justice. This of course is .sound, as w.-ll as 
familiar, law. But the interesting (|uesfion is. whether tlu- 
nation is supplied with adequate legislation, if that is to 
furnish the only means for the exercise of mt<Tnational duty. 



646 SPEECHES OF WILLIAM MAXWELL EVARTS 

If it is not so supplied, that is a fault as between the two 
nations; if it is so supplied, and the powers are not properly 
exercised, that is equally a fault as between the two nations. 
The course of the American argument is to show that, either 
on the one or the other of the horns of this dilemma, the 
actual conduct of the British Government must be impaled. 

We are instructed in this special argument as to what, in 
the opinion of the eminent Counsel, belongs to prerogative, 
and what to judicial action under the statute; but we find 
no limitation of what is in the power of Parliament, or in 
the power of administration, if adequate parliamentary 
provision be made for its exercise. But all this course of 
argument, ingenious, subtle and intricate as it is, finally 
brings the eminent Counsel around to this point, that by the 
common law of England icithin the realm, there is power 
in the Crown to use all the executive authority of the nation, 
civil and military, to prevent a hostile act towards another 
nation within that territory. That is but another name for 
prerogative, there is no statute on that subject, and no writ 
from any Court can issue to accomplish that object. 

If this is undoubtedly part of the common law of England, 
as the learned Counsel states, the argument here turns 
upon nothing else but the old controversy between us, 
whether these acts were in the nature of hostile acts, under 
the condemnation of the law of nations as such, that ought 
to have been intercepted by the exercise of prerogative, or 
by the power of the Crown at common law, whichever you 
choose to call it. The object of all the discussion of the 
learned Counsel is continually to bring it back to the point 
that within the kingdom of Great Britain, the Foreign 
Enlistment Act was the sole authority for action and pre- 
vention, and if these vessels were reasonably proceeded 
against, under the requirements of administrative duty in 
enforcing the Foreign Enlistment Act, as against persons 
and property for confiscation or for punishment, that was 
all that was necessary or proper. 



THE ALABAMA CLAIMS G47 

Sir Alexander Cockburn: Am I to undorstancl you 
as a lawyer to say that it was competent for the authorities 
at the port whence such a vessel escaped to order out trooj)s 
and conmiand them to fire? 

Mr. Evarts: That will depend upon the question 
whether that was the only way to comj)el her to an obser- 
vance. 

Sir Alexander Cockburn: I put the question to you 
in the concrete. 

Mr. Evarts: That would draw me to another suhjcct, 
viz., a discussion of the facts. But I will say that it (h'jH'uds 
upon whether the act she is engaged in committing comes 
within the category of hostile acts. 

Sir Alexander Cockburn: But taking this case, and 
laying aside the question of due diligence. The vessel is 
going out of the Mersey. Do you say as a lawyer that she 
should be fired upon.'^ 

Mr. Evarts: Under proper circumstances, yes. 
Sir Alexander Cockburn: But I put the circum- 
stances. 

Mr. Evarts: You must give me the attending circum- 
stances that show such an act of force is necessary to secure 
the execution of the public authority. You do not put in 
the element that that is the only way to bring such a vessel 
to. If you add that element, then I say yes. 

Sir Alexander Cockburn: She is going out of the 
port. They know she is trying to escape from t he port . Do 
you, I again ask— do you, as a lawyer, say that it would be 
competent for the authorities without a warrant, simply 
because this is a violation of the law, to fire on that vcsst-i? 

Mr. Evarts: Certainly, after the usual preliuuHaries of 
hailing her, and firing across her bows, to bring Iht to. 
Finally, if she insists on proceeding on her way. and tluis 
raises the issue of escape from the Government, or foniblr 
arrest by the Government, you are to fire into iur. it 



648 SPEECHES OF WILLIAM MAXWELL EVARTS 

becomes a question whether the Government is to surrender 
to the ship, or the ship to the Government. Of course, the 
lawfulness of this action depends upon the question whether 
the act committed is, under the law of nations, a violation of 
the neutrality of the territory, and a hostile act, as it is conceded 
throughout this argument, the evasion of an armed ship 
would be. 

In section sixteen of this argument you will find the state- 
ment of the learned Counsel on this subject of the executive 
powers of the British Government in this behalf: 

It is impossible too pointedly to deny the truth of thisassumj>tion, 
or too pointedly to state that, if any military or naval expeditions, 
or any other acts or operations of war, against the United States, 
in the true and proper sense of these words, had been attempted 
within British territory, it would not have been necessary for the 
British Government, either to suspend the Habeas Corpus Act, or 
to rely on the Foreign Enlistment Act, in order to enable it to 
intercept and prevent by force such expeditions, or such acts or 
operations of war. The whole civil police, and the whole naval 
and military forces of the British Crown, would have been law- 
fully available to the Executive Government, hy the common law of 
the realm, for the prevention of such proceedings. 

This is the law of England as understood by the eminent 
Counsel who has presented this argument. Given the facts 
that make the evasion from the port of Liverpool of the 
vessel proposed, a violation of the law of nations, — because 
it is a hostile act against the United States, and exposes 
Great Britain to responsibility for the violation of neutral- 
ity, — then, the situation has arisen, in the failure of civil 
means, the failure of remonstrance, of arrest and of bringing 
to, for firing into the vessel. For certainly, if we have 
authority to stop, we are not to have that authority met 
and frustrated by the persistence of violent resistance to it. 

It certainly makes very little difference to us whether this 
authority of the executive to use all its forces for the actual 
prevention of the occurrence of these hostile transactions 



THE ALABAMA CLAIMS 649 

within the reahn, is lodged in what he calls the common law 
of Great Britain, or is found, as we suppose, in the j)reroga- 
tive of the CrowTi. Nor do I understand this argument, 
throughout, to quarrel with the proposition that an armed 
ship that should undertake to proceed out of the port of 
Liverpool, would be exposed to the exercise of that power; 
and, of course, if the proper circumstances arose, even to the 
extent to which it has been pushed in answer to the questions 
put to me by one of the members of the Tribunal. For, if 
the Queen is to use all her power to prevent a hostile act, 
and if an armed vessel is, in its evasion of a port, com- 
mitting a hostile act, that power can be exerted to the j)oint 
of firing into such vessel, if necessary, as well as of merely 
exerting the slightest touch, if that proves sufficient to 
accomplish the object.* 

* It would seem to be quite in accordance with the ordinary course of Govern- 
ments in dealing with armed (or merchant) ships, that refuse obedience to a i>cace- 
ful summons of sovereignty to submit to its authority, to enforce that summons by 
firing into the contumacious ship. 

In "Phillimore," Vol. Ill, pp. 231-234, will be found the orders of the British 
Government in the matter of the "Terceira Expedition," and an account of their 
execution. Captain Walpole "fired two shots, to bring them to, Ijut they continued 
their course. The vessel, on board of which was Saldanha, although now within 
point blank range of the 'Ranger's' guns, seemed determined to push in at all 
hazards. To prevent him from effecting his object. Captain Walpole was imder the 
necessity of firing a shot at the vessel, which killed one man and woundini another." 
P. 232. 

The eighth article of the Biazillan Circular of June 23, 18G3, provides for the 
necessary exhibition of force, as follows: 

"8. Finally, force shall be used (and in the absence or insufficiency of this, h 
solemn and earnest protest shall be made) against a Ijelligerent who, on Ix-ing 
notified and warned, does not desist from the violation of the neutrality of the Empire. 
Forts and vessels of war shall be ordered to fire on a belligerent, who shall." etc. 7 
Am. App., p. 113. 

Indeed, there is no alternative, unless the solution of the difficulty laid down by 
Dogberry is preferred: 

"Dogberri/. You are to bid any man stand in the prince's name. 

"Watch. How if he will not stand? 

"Dogberry. Why, then, take no note of him, but let him go; and pn-.M-ntly 
call the rest of the watch together, and thank flod you are rid of a knave." Shakes- 
peare, Much Ado about Nothing, Act III, section 3. ». 



650 SPEECHES OF WILLIAM MAXWELL EVARTS 

Sections 17 to 25 are occupied with a discussion concern- 
ing the 'preventive powers and 'punitive powers under the 
legislation of Great Britain as compared with that of the 
United States. While there is here a denial that the British 
Government ever put itself upon a necessary confinement to 
the punitive powers of that act, or that that act contains no 
preventive power, or that it contains not so much as the act of 
the United States, still, after all, I find no progress made 
beyond this: that the preventive powers, thus relied upon 
and thus asserted, as having origin under, and by virtue of, 
the act, are confined to the prevention that springs out of 
the ability to punish, or out of the mode in which the power 
to punish is exercised. 

Nor will the text of the Foreign Enlistment Act furnish 
any evidence that it provides any power for the prevention 
by law of the evasion of such a vessel, except in the form of 
prosecution for confiscation, which is one of the modes of 
punishment. And when this Foreign Enlistment Act was 
passed in 1819, it was thus left unaccompanied by any execu- 
tive power of interception and prevention, for the reason, 
as shown in the debates, that this interceptive and preven- 
tive power resided in the prerogative of the Crown, and 
could be exercised by it. This will be seen from the debates 
which we have appended in Note B to our argument. 

In comparing that law with the preceding act passed in 
1818 by the American Government, the debates in Parlia- 
ment gave as the reason for the lodgment of this preventive 
power in the Executive of the United States, by the act of 
Congress, and for its not being necessary to lodge a similar 
preventive power in the British Crown, that there was no 
prerogative in America, while there was in Great Britain. 

To be sure, when one of the punishments provided by law 
is a proceeding in rem for confiscation of the vessel, if you 
serve your process at a time and under circumstances to 
prevent a departure of the vessel on its illegal errand, you 



THE ALABAMA CLAIMS G'A 

do effect a detention. But that is all. The trouble with 
that detention is, that it is only a detention of process, to 
bring to issue and trial a question of private right, a confisca- 
tion of the ship, which is to be governed by all the rules of 
law and evidence, which are attendant upon the exercise of 
authority by the Crown, in taking away the property of the 
subject. 

It never was of any practical importance to the Ignited 
States, whether the British Government confiscated a shij) 
or imprisoned the malefactors, except so far as this im'ght 
indicate the feelings and sympathy of that nation. All we 
wished was, that the Government should prevent these ves- 
sels from going out. It was not a question with us, whether 
they punished this or that man, or insisted upon this or that 
confiscation, provided the interception of the cruisers was 
effected. When, therefore, we claimed under the Foreign 
Enlistment Act or otherwise, that these vessels should be 
seized and detained, one of the forms of punitive recourse 
under that act would have operated a detention, if applied 
at the proper time and under the proper circumstances. Con- 
fiscation had its place whenever the vessel was in the power 
of the Government; but it was only by intercei)tion of the 
enterprise that we were to be benefited. That interception, 
by some means or other, w^e had a right to; and if your law, 
if your constitution, had so arranged matters that it could 
not be had, except upon the ordinary process, the ordinary 
motives, the ordinary evidence, and the ordinary duty by 
which confiscation of private property was obtained, ;md 
that provision was not adequate to our rights, then our argu- 
ment is that your law needed improvement. 

But it is said that nothing in the conduct of Great Britain, 
of practical importance to the United States, turntnl upon 
the question whether the British law, the Foreign Enlist- 
ment Act, was applicable only to an armed vessel, or wjuj 
applicable to a vessel that should go out merely prepared to 



652 SPEECHES OF WILLIAM MAXWELL EVARTS 

take its armament. How is it that nothing turned upon 
that question? It is so said because, as the learned Counsel 
contends, the Government adopted the construction that the 
statute did embrace the case of a vessel unarmed. But 
take the case of the "Alabama," or the "Florida," for an 
illustration, and see how this pretension is justified by the 
facts. What occasioned the debates of administrative 
officers .f* What raised the difficulties and doubts of custom 
house and other officials, except that the vessel was not 
armed, when as regards both of these vessels the Executive 
Government had given orders that they should be watched .^^ 
Watched! watched, indeed! as they were until they went 
out. They were put under the eye of a watching super- 
vision, to have it known whether an armament went on 
board, in order that then they might be reported, and, it 
may be, intercepted. The whole administrative question 
of the practical application of authority by the British Gov- 
ernment, in our aid, for the interception of these vessels, 
turned upon the circumstance of whether the vessel was 
armed or was not armed. Under the administration of that 
question, they went out without armaments, not wishing to 
be stopped, and, by pre-arrangement, took their armaments 
from tenders that subsequently brought them, which, also, 
could not be stopped. 

Certain observations of Baron Bramwell are quoted by 
the learned Counsel in this connection, which are useful to 
us as illustrating the turning point in the question as to 
armed and unarmed vessels. They are to this effect, and 
exhibit the British doctrine : 

A vessel fitted to receive her armament and armed, is a 
vessel that should be stopped under an international duty. 
This amounts to an act of proximate hostility which a 
neutral is bound to arrest. Baron Bramwell held that the 
emission of a vessel armed is, undoubtedly, a hostile expedi- 
tion within the meaning of the law of nations. But a vessel 



THE ALABAIMA CLAIMS 653 

fitted to receive her armament in the neutral port, antl sent 
out of that port by the belhgerent only in that contlition, he 
held is not an enterprise in violation of the law of nations, 
and is not a hostile expedition in the sense of that law. By 
consequence, Baron Bramwell argued, nothing in suc-li an 
enterprise of a belligerent from a neutral port calls for the 
exercise of authority on the part of the neutral, either by 
law or by executive interference, and, until the armament 
gets on board, there is nothing to bring the case within the 
province of international proscription and of international 
responsibility. It was then, he argues, only a question for 
Great Britain whether the provisions of the Foreign Enlist- 
ment Act can touch such a vessel, and the only question for 
the British Government was as towards the United States, 
have they done their duty to themselves in the enforcement 
of the municipal law, which involves a question of inter- 
national responsibility to the United States.'^ ^Ye insist, 
therefore, that so far from nothing practical turning upon 
this distinction, all the doubts and difficulties turn upon it, 
especially in connection with the ancillary proposition that 
these vessels could be provided, by means of their tenders, 
with armaments, without any accountability for the com- 
plete hostile expedition.* 

It is said that we can draw no argument as to the de- 
ficiency of their old act, from the improved provisions of the 
new act of 1870. Why not.^ "When we say that your act 
of 1819 was not adequate to the situation, and that, if you 

*Mr. Theodore Ortolan, in a late edition of his " Diplomatic de la Mor," tome 
II, says: 

"Nous nous rattacherons, pour resoudre en droit des gens Ics difTiciiIles que 
presente cette nouvelle situation, a un principe universellement elabli, iiui sc 
formule en ce peu des mots: 'Inviolahilite du territoire neutre.' Cette inviolnl>- 
ilite est un droit pour I'etat neutre, dont le territoire ne doit pas 6trc atli-iiit |)ur Ics 
faits de guerre, mais elle impose aussi a ce memo clat neutre unc ^Iroite ohhgalion. 
celle de ne pas permettre, celle d'empedicr, activemeiil au liesoin. r.-niphu <lf t-e 
territoire par I'une des parties ou au profit de I'une des parties bellig«'Tant«-s. dnns 
un but hostile a I'autre partie," Case of the U. S., p. 182. 



654 SPEECHES OF WILLIAM MAXWELL EVARTS 

had no prerogative to supply its defects, you should have sup- 
plied them by act of Parliament, — that you should have 
furnished by legislation the means for the perfonnance of a 
duty which required you to prevent the commission of the 
acts which we complain of — it is certainly competent for us 
to resort to the fact that, when our war was over, from 
thenceforth, movements were made towards the amendment 
of your law, and that, when the late war on the continent of 
Europe opened, your new Act was immediately passed con- 
taining all the present provisions of practical executive inter- 
ception of such illegal enterprises — it is, I say, competent for 
us to refer to all this as a strong, as well as fair argument, to 
show that, even in the opinion of the British Parliament, the 
old Act was not adequate to the performance of the inter- 
national duties of Great Britain to the United States. 

Sections 27 to 30 of the special argument are occupied with 
a discussion of that part of our argument which alleges, as 
want of due diligence, the entire failure of Great Britain to 
have an active, effective, and spontaneous investigation, 
scrutiny, report and interceptive prevention of enterprises 
of this kind. Well, the comments upon this are of two kinds : 
first concerning the question, under a somewhat prolonged 
discussion of facts, whether the Government did or did not 
do this, that, or the other thing;* and, then, concerning the 
more general question, as to whether the rules of this treaty 
call upon this Tribunal to inquire into any such deficiency 

* It does not seem profitable to go into a minute examination of the proofs before 
the Tribunal to estabhsh the propositions of our argument specially controverted 
in section 29 and 30 of the present argument of the eminent Counsel. Although 
the letter of Earl Russell, quoted by the learned Counsel, does, incidentally, refer 
to certain instructions having been given to subordinate officials, yet we look in 
vain, through the proofs of the British Government, for the text or date or circula- 
tion of these instructions. As for the rest, we find nothing in the instances cited, 
in which specific information happened to be given in regard to this or that vessel 
or enterprise, which contravenes our general propositions of fact, in this behalf, of 
the inference of want of due diligence qr the part of tl^e British Gqveriiment, whicl\ 
we have drawn from those facts. 



THE ALABAMA CLAIMS G55 

of diligence which was not appHcable to the case of a ves- 
sel respecting which the British Government "had reason- 
able ground to believe" that a violation of the law was 
meditated. 

Our answer to this latter question is, that the Rules to- 
gether, in their true construction, require the a|)plication of 
due diligence (particularly under the special emphasis of tiie 
third rule), "to prevent" the occurrence of any of llu- in- 
fractions of the law of nations proscribed by the rules. 

There are two propositions in these rules. Certain things 
are assigned as violations of the law of nations, and as in- 
volving a duty on the part of a neutral Government to i)re- 
vent them; and besides in and towards preventing them it is 
its duty to use due diligence. In regard to every class of al- 
leged infractions of these rules, there comes to be an inciuiry, 
first, whether in the circumstances and facts which are as- 
signed, the alleged infractions are a violation of any of the 
duties under the law of nations as prescribed by those rules. 
If not, they are dismissed from your consideration. Hut if 
they are so found, then these rules, by their own vigor, l)e- 
come applicable to the situation, and then comes the in(|uiry 
whether Great Britain did, in fact, use due diligence to pre- 
vent the proscribed infractions. It is under the sections now 
under review, that the learned Counsel suggests whether it 
is supposed that this general requirement of the use of due 
diligence by Great Britain is intended to cover the cases of 
vessels like the "Shenandoah" and the "Georgia" (which, 
it is alleged the British Government had no reasonable 
ground to believe were meditating or i)rei)aring an evasion of 
the laws or a violation of the duties of (ireat liritain); or 
the cases of these tenders, that supplied the "(Jeorgia." 
and the "Shenandoah," and the "Florida," and the ".\la- 
bama," with their armaments and numitions of war it is 
under these sections that this discussion arises. TUr answer 
on our part to this suggestion is, that the general means of 



656 SPEECHES OF WILLIAM MAX^\^LL EVARTS 

diligence to keep the Government informed of facts and 
enable it to judge whether there was "reasonable ground to 
believe" in any given case, and thus enable it to be prepared 
to intercept the illegal enterprise, are required in cases that 
the rules proscribe as infractions of neutrality. 

I will agree that under the first clause of the first rule the 
duty is applied to a vessel concerning which the Govern- 
ment "shall have reasonable ground to believe," etc. 
Under the second clause of the first rule, this phrase is omit- 
ted, and the question of "reasonable ground to believe" 
forms only an element in the more general question of "due 
diligence." Under the second Rule also, the whole subject 
of the use of the neutral ports and waters as a base of naval 
operations, is open; and, if there has been a defect of dili- 
gence in providing the officers of Great Britain with the 
means of knowledge and the means of action, to prevent such 
use of its ports and waters as a base of operations, why, 
then, Great Britain is at fault in not having used due dili- 
gence to prevent such use of its ports and waters. That is 
our argument; and it seems to us, it is a sound argument. 
It is very strange, if it is not, and if the duty of a govern- 
ment to use due diligence to prevent its ports and waters 
from being used as a base of naval operations, does not in- 
clude the use of due diligence to ascertain whether they were 
being, or were to be, so used. 

It was a fault not to use due diligence to prevent the ports 
and waters of Great Britain from being used as a base of 
naval operations, or for the augmentation of force, or the 
recruitment of men. And to admit that it was a fault, in 
anv case, not to act where the Government had cause to 
believe that there was to be a violation of law, and yet to 
claim that it was no fault for the Government to be guilty 
of negligence in not procuring intelligence and information 
which might give a reasonable ground to believe, seems to me 
absurd. 



THE ALABAMA CLAIMS 657 

This, indeed, would be to stamp the lesser negligence, of 
not applying due diligence in a particular case when there 
was "reasonable ground to beheve," as a fault, entailing 
responsibility upon a neutral Government, and to excuse the 
same Government for the systematic want of due diligence 
which, through indifference to duty and voluntary ignorance, 
did not allow itself to be placed in a position to judge wiielher 
the ground of belief was reasonable, or whether there was any 
ground at all for its action. The lesser fault infers that the 
same or greater responsibility, is imputable to the greater 
fault. 

The sections of the special argument of tlie learned 
Counsel, which are occupied with a comparison ))et\v<'en the 
practical efficiency of the American and of the English Acts, 
and in which the propositions of our argument, in this re- 
gard, are questioned and commented upon, will be replied to 
by my learned associate, Mr. Gushing, in an argument which 
he will present to the Tribunal. It is enough for me to re- 
peat here, the observation of our argument, that tlie true 
measure of the vigor of an act is its judicial interpretation 
and its practical execution. We do not intend to allow our- 
selves to be involved in discussions as to the propriety of this 
or that construction of the English act which reduced its 
power. The question with us is, what were the i)ractieal 
interpretation and exercise of the powers of that act, as com- 
pared with the practical interpretation and exercise of the 
powers of the Neutrality Act of the United States.^ 

The propositions of our argument seem to us untouch.-d by 
any of the criticisms which the learned Counsel has appli«'«l 
to them. We, rightly or wrongly, have interpreted our act. 
from its first enactment to the present time, jls giving au- 
thority to the Executive of the United Stales, to intt-rc-pt 
by direct exercise of power, all these prohibited ent.Ti)risrs 
at any stage at which he can lay his hands ui)on thnn. for 
the purpose of their prevention. The corri'spondenee pro- 

44 



658 SPEECHES OF WILLIAM ]VL\X^^^:LL EVARTS 

duced in our proofs, showing the action of the Executive 
Government on all the occasions in which this statute has 
been required to be enforced, will indicate that, whether it 
has been successful or not in the execution of the duty, the 
Government has recognized the duty, the Executive has 
undertaken it, and all the subordinates have had their at- 
tention called to it, in the sense and to the end of 'preven- 
tion. All subordinates have, as well, always been stimu- 
lated to the duty of keeping the Executive, from time to 
time, fully and promptly supplied with information to secure 
the efficient execution of the law: And it is not improper, 
perhaps, for me here to observe, that my learned associate, 
Mr. Gushing, and myself, having been called upon to exe- 
cute this statute in the office of Attorney General of the 
United States, we can bear testimony to its vigor and its 
efficiency, in the every day action of the Government. It 
is submitted to and not questioned, and produces its effect. 
Whether the Government of the United States, possessing 
that power under and by authority of the statute, has always 
been successful or not, or has always used due diligence in 
its exercise, and whether it is accountable to this or that 
nation for a faulty execution of its duties of neutrality, are 
questions which this Tribunal cannot dispose of, and they 
are only remotely collateral to any discussions properly be- 
fore the arbitrators. 

Sir Alexl\nder Cockburn: If you are arguing now 
upon that point, Mr. Evarts, explain this to me. By the 
last English Act of 1870, the Secretary of State has power, 
under certain circumstances, to order a vessel to be seized, 
and then it is provided that the o\Mier of such vessel may 
make claim, etc., which the Court shall as soon as possible 
consider. I want to ask you, what, under your act of I8I8, 
which gives power to the President to seize, under similar 
circumstances, would be the course of proceedings in such a 
case.? How would the owner be able to know whether his 



THE ALABAMA CLAIMS 659 

vessel was one liable to seizure and confiscation? IIow would 
he get his vessel back again according to your form of i)ro- 
cedure? 

Mr. Evarts: I take it for granted that the detention 
which the President might authorize, or cause to be made, 
would not be an indefinite detention. By the terms of the 
act, however, that exercise of the executive power is not, 
necessarily, terminated by a judicial appeal of any kind. 

Sir Alexander Cockburn: Do you mean to say that 
the ship shall remain in the hands of the Government.' 

Mr. Evarts: If the party chooses so to leave it without 
satisfactory explanation. The President interposes in the 
discharge of a public duty, to prevent the commission of an 
act in violation of neutrality, which he believes to be illegal. 
On representation to him by the aggrieved party, he will re- 
lease the vessel, if he finds reason. If he does not so re- 
lease, then the vessel remains subject to the continued exer- 
cise of executive control, under the same motives that first 
induced it. 

Sir Alexander Cockburn: Would not the President, 
in the ordinary practice of things, direct that the matter 
should be submitted to judicial determination.' 

Mr. Evarts: This Executive interception carries no 
confiscation. It merely detains the vessel and the owner 
can appl}^ for its release, giving an explanation of the matter. 
But the Executive may say, "I am not satisfied with your 
explanation; if you have nothing else to say, I will keep your 
vessel"; or he may send it to the Courts to enforce its con- 
fiscation. 

Sir Alexander Cockburn: Which does he practically do? 

Mr. Evarts: He practically, when not satisfied to re- 
lease it, usually sends it to the Court, })ecause the situation 
admits of that disposition of it. Tender the act of the In i ted 
States, there is the same actual iiilcrcc^plioii by the Execu- 
tive which your act of 1870 — 



660 SPEECHES OF WILLIAM MAXWELL EVARTS 

Sir Alexander Cockburn: Under our act the Execu- 
tive has no discretion; it must send it to the courts." 

Mr. Evarts: Under our act, we trust the Executive for 
a proper exercise of the official authority entrusted to him. 

In the American case, some instances of the exercise of 
this power on a very considerable scale, will be found. 
(Page 126 of the French translation.) The documents ex- 
plaining these transactions are collected at length in the 
Appendix to the American counter-case. 

Sections 38 to 41 of the special argument call in question 
our position as to onus probandi. It is said, that we im- 
properly undertake to shift, generally, the burden of proof, 
and require Great Britain to discharge itself from liability 
by affirmative proof, in all cases where we charge that the 
act done is within the obligation of the three rules. This 
criticism is enforced by reference to a case arising in the pub- 
lic action of the United States under the treaty of 1794 with 
Great Britain. 

I will spend but few words here. The propositions of our 
argument are easily understood upon that point. They 
come to this : that, whenever the United States, by its proofs, 
have brought the case in hand to this stage, that the acts 
which are complained of, the action and the result which 
have arisen from it, are violations of the requirements of the 
law of nations as laid down in the three rules, and this 
action has taken place within the jurisdiction of Great 
Britain (so that the principal fact of accountability within 
the nation is established), tJien, on the ordinary principle 
that the afiirmative is to be taken up by that party which 
needs its exercise, the proof of "due diligence" is to be sup- 
plied by Great Britain. How is a foreigner, outside of the 
Government, uninformed of its conduct, having no access to 
its deliberations or the movements of the Government, to 
supply the proof of the ivant of due diligence? We repose, 
then, upon the ordinary principles of forensic and judicial 



THE ALABAMA CLAIMS 661 

reasoning. When the act complained of is at the fault of 
the nation, having been done within its jurisdiction, and is 
a violation of the law of nations for which then' is an ac- 
countability provided by these three rules, the j)oint of de- 
termination whether due diligence has been exercised by the 
authorities of the country to prevent it, or it hcis haijpcncil 
in spite of the exercise of due diligence — the iMirden of the 
proof of "due diligence" is upon the party charged with it^ 
exercise. 

Let us look at the case of the "Elizabeth," which is cpioted 
in section 41. It is a long quotation and I will read, there- 
fore, only, the concluding part. It will be found on page 
50 of the French translation of the special argument. The 
question was as to the burden of proof under the obligation 
that had been assumed by the United States: 

The promise was conditional. We will restore in all those 
cases of complaint where it shall be established by sufficient testi- 
mony that the facts are true which form the basis of our promise — 
that is, that the property claimed belongs to British subjects; 
that it was taken either within the line of jurisdictional protection 
or, if on the high seas, then by some vessel ille^'ally armed in our 
ports; and that the property so taken has been brought within our 
ports. By whom were these facts to be proved? According to 
every principle of reason, justice, or equity, it belongs to him who 
claims the benefit of a promise to prove that he is the perstin in 
whose favor, or under the circumstances in which the promise wa.s 
intended to operate. 

A careful perusal of this passage is sufficient to show that 
the facts here insisted upon as necessary to be prove<l by the 
claimant, are precisely equivalent to th<- facts which the 
United States are called upon to prove in this case. These 
facts, as I have before stated, bring the circumstances of the 
claim to the point where it appears that the responsibility 
for the injury rests upon Great Britain, unless due dihgeiu-e 
was used by the Government to prevent the mischievous con- 



662 SPEECHES OP WILLIAM MAXWELL EVARTS 

duct of the subjects or residents of that kingdom which has 
produced the injuries complained of. In the absence of this 
due dihgence on the part of that Government, the apparent 
responsibihty rests undisturbed by the exculpation which the 
presence of due diligence will furnish. The party needing 
the benefit of this proof, upon every principle of sound reason, 
must furnish it. This is all we have insisted upon in the 
matter of the burden of proof. 

In conclusion of the first chapter of this special argument, 
the eminent Counsel, at section 43 takes up the " Terceira 
affair" and insists that if Great Britain, in a particular sit- 
uation for the exercise of duties of neutrality, took extraor- 
dinary measures, it does not prove that the Government were 
under obligation to take the same measures in every similar 
or comparable situation. 

We referred to the "Terceira" affair for the purpose of 
showing that the Crown, by its prerogative, possessed 
authority for the interception of enterprises originating 
within the kingdom for the violation of neutrality. The 
question, whether the Executive will use it, is at its discre- 
tion. The poiver we prove, and, in the discussions in both 
Houses of Parliament, it was not denied, in any quarter, 
that the power existed to the extent that we call for its ex- 
ercise within British jurisdiction. The question in contro- 
versy then was (although a great majority of both Houses 
voted against the resolutions condemning the action of the 
Government), whether, in the waters of Portugal or upon 
the seas, the Government could, with strong hand, seize 
or punish vessels which had violated the neutrality of Great 
Britain, by a hostile, though unarmed, expedition from its 
ports. The resolutions in both Houses of Parliament re- 
ceived the support of only a small minority. Mr. Philli- 
more, however, says the learned Counsel, expresses the 
opinion, in his valuable work, that the minority were right. 

Sir Alexander Cockburn: I confess I always thought 
so myself. 



THE ALABAMA CLAIMS 0(53 

Mr. Evarts: But the point now and here in discussion, 
is, what were the powers of tlie Crown iril/iin the Hniits of 
British jurisdiction, and it is not necessary to consider who 
were right or wlio were wrong in the divisions in Tarlia- 
ment. What all agreed in was, that the fault charged u|M>n 
the Government was the invasion of the territorial rights of 
another nation. 

But we cited the "Terceira" aftair for tiic additional pur- 
pose of showing the actual exercise of the power in (|uestiou, 
by the Crown, in that case. This was iiuportaiil to ii> in 
our argument; it justly gave support to the imputation 
that the powers of the Government were not dihgently ex- 
ercised during the American Reheliion, in our helialf. 
Where there is a will, there is a way; and diligence means 
the use of all the faculties necessary and suitahle to the 
accomplishment of the proposed end. 

Now, in conclusion, it must be apparent that the great 
interest, both in regard to the important controversy be- 
tween the High Contracting Parties, and in regard to the 
principles of the law of nations to be here established, turns 
upon your award. That award is to settle two great (|ues- 
tions: whether the acts which form the subject of the ac- 
cusation and the defence, are shown to be acts that are |)ro- 
scribed by the law of nations, as expressed in the three 
rules of the treaty. You cannot alter the nature of tlie case 
between the two nations, as shown by the proofs. The facts 
being indisputably established in the ])roofs, you are then to 
pass upon the question whether the outfit of these tenders 
to carry forward the armament of the hostile expedition to 
be joined to it outside of Great Britain, is according to the 
law of nations, or not. 

When you pass upon the question whether this is a vi«»la- 
tion of the second rule, you pass upon tin- (|uesti»>n. under the 
law of nations, whether an obligation of a neutral not to 
allow a hostile expedition to go forth from its ports can be 



664 SPEECHES OF WILLIAM MAXWELL EVARTS 

evaded by having it sent forth in parcels, and having the 
combination made outside its waters. You cannot so de- 
cide in this case, and between these parties, without estab- 
Hshing by your award, as a general proposition, that the law 
of nations proscribing such hostile expeditions, may be 
wholly evaded, wholly set at naught by this equivocation 
and fraud practiced upon it; that this can be done, not by 
surprise, — ^for anything can be done by surprise, — but that 
it can be done openly and of right. These methods of com- 
bination outside of the neutral territory may be resorted to, 
for the violation of the obligations of neutrality, and yet the 
neutral nation, knowingly suffering and permitting it, is 
free from responsibility ! This certainly is a great question. 

If, as we must anticipate, you decide that these things 
are proscribed by the law of nations, the next question is, 
was "due diligence" used by Great Britain to prevent them. 

The measure of diligence actually used by Great Britain, 
the ill consequences to the United States from a failure on 
tlie part of Great Britain to use a greater and better measure 
of diligence, are evident to all the world. Your judgment, 
then, upon the second question, is to pronounce whether 
that measure of diligence which was used and is known to 
have been used, and which produced no other result than the 
maintenance, for four years, of a maritime war, upon no 
other base than that furnished from the ports and waters of 
a neutral territory, is the measure of "due diligence," to 
prevent such use of neutral territory, which is required by 
the three rules of the treaty of Washington for the exculpa- 
tion of Great Britain. 



VIII 

ARGUMENT IN BEHALF OF OWNERS OF IMli: 
CARGO OF THE BARQTl^: "Sl>UIN(;h()K," 
CLAIMANTS AGAINST THE UNITED STATES. 
BEFORE THE MIXED COMMISSION ON- 
BRITISH AND AMERICAN CLAIMS. (THE 
"SPRINGBOK" CASE) 

NOTE 

The barque "Springbok," laden with a large and valuable cargo 
of general merchandize, a very small portion of which was contra- 
band of war, ship and cargo being the property of Hritisli subjects, 
sailed from London in December, 1862, bound for the port of 
Nassau, in New Providence, one of the Bahama Islands under 
British rule and jurisdiction. On her way the vessel with her 
cargo was captured by a United States cruiser and brought to 
New York as lawful prize of war, to be subjected to coudciunatioti 
by the Courts of the United States. The ownershi[) of the ve.s.sel 
was distinct from that of the cargo. Upon the trial in the Unite<l 
States District Court before Judge Betts, a decree of condenmatiou 
was entered against both ship and cargo. The decree of condemna- 
tion was based upon the findings of the Court that (in the language 
of the decree) "the said vessel, at the time of her ca[)turo at sea. 
was knowingly laden, in whole or in part, with articles conlrai)aM(i 
of war, with intent to deliver such articles to the aid and use of the 
enemy; that the true destination of the said ship and cargo was not 
to Nassau (a neutral port) and for trade and commerce, but to 
some port lawfully blockaded by the forces of the I'nited States, 
and with intent to violate such blockade; and further that the 
papers of said vessel were simulated and false." 

On appeal to the Supreme Court of the Luited States, the con- 
demnation of the vessel was reversed but that of the cjirgo wjls 
sustained.* The condemnation of the cargo jjrm-eiMled ujHin the 

♦Supreme Court Reports, 5 Wallace, 1. The Chief Jasti.v .l.liv,Tr<l ll.c 
opinion of the Court, four Associate Justices dis.scnting. 

W5 



666 SPEECHES OF ^MLLIAM MAX^VELL EVARTS 

theory, which seems to have been based upon surmise, conjecture 
and moral probabihty rather than upon proof, that it was the in- 
tention of the owners of the cargo to transship at Nassau into some 
other vessel for the purpose of running the blockade of the Southern 
ports, and that this purpose under the doctrine of "continuous 
voyages," rendered the cargo subject to confiscation by the of- 
fended belligerent at any time during the voyage, after leaving the 
port of origin. The grounds of the decision of the Supreme Court 
are subjected to a critical analysis in IVIr. Evarts's argument ad- 
dressed to this Mixed Commission. 

The Court's decision was, and has been ever since, the subject of 
much adverse criticism by publicists and authorities on interna- 
tional law the world over, as an extension of the doctrine of "con- 
tinuous voyages" beyond all warrant of the law of prize, and as 
tending to establish an intolerable interference, by belligerent 
nations, with the lawful trade of neutrals between neutral ports. 
How truly it was said by Mr. Evarts in this argument that " The 
future interests of the United States imperatively demand that 
the barriers against belligerent pretension, which this case of the 
"Springbok" has overturned, should be firmly established by the 
judgment of this International Tribunal," was impressively 
brought home when Great Britain, at the time when the United 
States stood neutral in the European war, cited the "Springbok" 
decision to justify her interference with the commerce between 
neutral ports, in her attempt to cut off all intercourse with the 
Central European powers. 

Wharton, in his international law digest (III, 404) has this to say 
of this argument, in an editorial note discussing the decision of the 
Supreme Court: "It is a matter of great regret, also, that the 
masterly argument of Mr. Evarts, before the mixed commission 
afterwards instructed to act on this class of claims, * * * an 
argument which is one of the ablest expositions of international law 
in this relation which has ever appeared and is recognized as such 
by the highest foreign authority, had not been delivered before the 
Supreme Court, so as to have enabled that tribunal to become aware 
of the great gravity of the question involved." 

Mr. Evarts's argument was presented to the Mixed Commission 
on British and American claims arising out of the Civil War, which 



THE SPRINGBOK CASE 667 

had been established under the Treaty of Washington of May 8, 
1871. The British Government prosecuted the claiin of the owners 
of the cargo of the "Springbok" before this connnission and Mr. 
Evarts was retained by them in the matter. An oral argument of 
the case was not permitted and it was presented in printed form. 

John Bassett Moore, who hokls the cliair of international law in 
Columbia University and has at various times been eonneeled with 
the State Department at Washington, wrote of this argument in 
these words: "It has never been my good fortune to read a Ixfter 
argument in a prize case and I do not expect ever to see a belter 
one. Each year since I came here (Columbia) I have had my stu- 
dents read it. No one but a great lawyer with a |)rofoiin<l ji|)- 
prehension of the principles of international law could have made 
such an argument." 

ARGUMENT. 

STATEMENT OF THE CASE 

The barque "Springbok" and her entire cargo wen- con- 
demned as lawful prize of war to the United States steamer 
"Sonoma," by decree of the United States District Court 
for the Southern District of New York, on the 1st day of 
August, 1863. 

The learned district judge, Betts, gave, in passing c-on- 
demnation upon the barque and her cargo, as the ground of 
his decree, 

That the said vessel, at the time of her caplnre at .sea. was 
knowingly laden, in whole or in i)art, with articles contraband 
of war, with intent to deliver such articles to the aid and nse of the 
enemy; that the true destination of tlie said shij) and cargo was 
not to Nassau, a neutral port, and for trade and commerce, but 
to some port lav\^ully blockaded by th.> forces of the United 
States, and with intent to violate such bltM-kade; and further, 
that the papers of the said vessel were simulated ami fals.-. 
Wherefore the condemnation and forfeiture of the vessel an.l 
cargo is declared. (Proof for Claimants, p. ^i^.j 



668 SPEECHES OF WILLIAM MAXWELL EVARTS 

Thus it appears, vessel and cargo were condemned in the 
District Court as taken in delicto on a voyage planned and 
prosecuted with intent to violate an existing blockade. 

Upon appeal to the Supreme Court of the United States 
that Court reversed the condemnation of the vessel, and 
held that — 

Her papers were regular, and they all showed that the voyage on 
which she was captured was from London to Nassau, both neutral 
ports within the definitions of neutrality furnished by the inter- 
national law. The papers, too, were all genuine, and there was 
no concealment of any of them and no spoliation. Her owners 
were neutrals, and do not appear to have had any interest in the 
cargo and there is no sufficient proof that they had any knowledge 
of its alleged unlawful destination. The preparatory examinations 
do not contradict, but rather sustain the papers. (Case of the 
"Springbok," 5 Wall. 21.) 

The Supreme Court, however, affirmed the condemnation 
of the cargo upon this conclusion, as to the ground of con- 
demnation : 

Upon the whole, we cannot doubt the cargo was originally 
shipped with intent to violate the blockade; that the owners of 
the cargo intended that it should be transshipped at Nassau in 
some vessel more likely to succeed in reacliing safely a blockaded 
port than the Springbok; that the voyage from London to the 
blockaded port was, as regarded the cargo, both in law and in 
intent of the parties, one voyage; and that the liability to condem- 
nation, if captured during any part of that voyage, attached to 
the cargo from the time of sailing. {Ibid., pp. 27, 28.) 

Thus it appears, condemnation passed finally upon the 
cargo, not as taken in delicto during a voyage in which the 
vessel carrying it was to be an agent of transportation with 
intent to violate the blockade, but simply as set in progress 
(by and through an innocent voyage of an innocent vessel 
to a lawful port) towards a purpose of thereafter obtaining 
transportation, by a voyage yet to be commenced, by some 



THE SPRINGBOK CASE 669 

unknown and unnamed guilty vessel to some unknown and 
unnamed blockaded port. 

View of the facts and the evidence upon which the Supreme 
Court drew the conclusion that the cargo woji taken in delicto, 
as lawful prize, for attempt to violate the blockade: 

I. The bills of lading disclosed the contents of six liuiulrc*! an<l 
nineteen, but concealed (that is, did not mention) the contents of 
thirteen hundred and eighty-eight, of the two thousand and seven 
packages which made up the cargo. Like those in the Bcriiuida 
case, they named no consignee, but required the cargo to be 
delivered to order or assigns. The manifest of the cargo also, 
like that in the Bermuda case, mentioned no consignee, hut de- 
scribed the cargo as dehverable to order. I'niike those hills and 
that manifest, however, these concealed the names of the real 
owners as well as the contents of more than two-thirds of the 
packages. (5 Wallace, p. 24.) 

The injurious inference and the damnatory imputation 
from this so-called "concealing" the contents of the j)ackages 
is thus stated by the court: 

The true reason must be found in the desire of the owners to hide 
from the scrutiny of the American cruisers the contraband char- 
acter of a considerable portion of the contents of those packages. 

(Ibid., p. 25.) 

In the opinion of the Court the basis for injurious infer- 
ence and damnatory imputation from the so-called "ron- 
cealing" the names of the owners of the cargo, is not found 
in the papers of the prize or in the preparatory proofs in the 
cause, but solely in papers invoked at the hearing, from the 
case of the "Gertrude" and from the case of the **Stcj)hcn 
Hart." The only /ad acquired from the invo<'ation of tin- 
papers in the case of the "Gertrude" was, that Hegbie. a 
claimant of the cargo of the "Si)ringi)ok," was owner of tlie 
"Gertrude," and the only /ad acquired from the papers of 
the "Stephen Hart" was that S. Isaac, Campbell and Co., 



670 SPEECHES OF WILLIAM MAXWELL EVARTS 

also claimants of the cargo of the "Springbok," were the 
owners of the cargo of the "Stephen Hart." Upon these 
facts thus presented to the Court, the omission of the names 
of these owners of the cargo of the "Springbok" gives rise 
to this damnatory conclusion from such omission: 

Clearly the true motive of this concealment must have been the 
apprehension of the claimants, that the disclosure of their names 
as owners would lead to the seizure of the ship in order to the 
condemnation of the cargo. {Ibid., p. 25.) 

But the Court hold expressly that — 

"These concealments do not warrant condemnation" of the cargo, 
and broadly maintain that the cargo must be restored to the claim- 
ants "if the real intention of the owners was that the cargo should 
be landed at Nassau, and incorporated by real sale into the common 
stock of the island." (Ibid., p. 25.) 

II. The items of fact or surmise tending to a conclusion 
of a plan of transshipment at Nassau into a blockade-runner 
are gathered and combined by the Court, as follows: 

(a) "The consignment, shown by the bills of lading and 
the manifest, was to order or assigns." This the Court 
regarded as negativing the intent of sale at Nassau, "for had 
such sale been intended, it is most likely that the goods 
would have been consigned for that purpose to some estab- 
lished house named in the bills of lading." 

"This inference is regarded by the Court as strengthened," from 
the charterer's instructions to the master of the "Springbok" 
"to report to B. W. Hart, the agents of the charterers, at Nassau, 
and receive his instructions as to the delivery of the cargo. The 
property in it was to remain unchanged upon delivery. The 
agent was to receive it and execute the instructions of his prin- 
cipals." (Ibid., p. 26.) 

(h) The Court then undertake to "collect" what these 
instructions were "from the character of the cargo." 
The characteristics of the cargo from which the unknown 



THE SPRINGBOK CASE 071 

instructions for its disposal at Nassau arc to be collected, 
are the presence of "arms and numitions of war," in the 
shape of "sixteen dozen swords and ten dozen rifle l)ayt>nets, 
and the forty-five thousand navy buttons and the one hun- 
dred and fifty thousand army buttons," and of "(///a.v/ cdu- 
traband," in the shape of "seven bales of army cloth and tin* 
twenty bales of army blankets." The conclusion drawn frt)m 
these features of the cargo is thus stated : 

We cannot look at such a cargo as this and doubt that a coiisidcr- 
able portion of it was going to the rebel States, wiu're alonr it 
could be used; nor can we doubt that the whoK' (ar;,'<) had one 
destination. (Ibid., p. 27.) 

(c) From ''ultimafe destination"' of a considerable por- 
tion of this cargo for consumption in the rebel States, thus 
arrived at, the Court then reasons out the course by which 
the whole cargo, as a unit was to get there, as follows: 

Now if this cargo was not to be carried to its ultimate destina- 
tion by the "Springbok" (and the proof does not warrant us in 
saying that it was), the plan must have been to send it forward i)y 
transshipment. And we think it evident that such was the puri>osc. 

The Court find, also, support for this inference from the 
invoked proofs, showing (1) "that Isaac, Cam})bell and Co. 
had before supplied military goods to the rebel authorities 
by indirect shipments, and (2) that Begbie was owner of the 
'Gertrude' and engaged in the business of running the 
blockade." (Ibid., p. 27.) 

(d) The Court add an element of further support to 

their conclusion, as follows: 

If these circumstances were insufficient grounds for a sjitisfac- 
tory conclusion, another nii-ht be f<.uMd /// thr presnicc of thr 
''Gertrude" in the harbor of A'a.v.v«». iiiili itudcuicd intent In run 
the blockade, about the time when the arrival of the "Sprin^'bok" 
was expected there. It seems to us extremely probable that she 
had been sent to Xassau to await the arrival of the " S,,nn<)lH,k. 



672 SPEECHES OF WILLIAM MAXWELL EVARTS 

and to convey her cargo to a belligerent and blockaded port, and 
that she did not so convey it, only because the voyage was inter- 
rupted by the capture. (Ibid., p. 27.) 

(e) The only further makeweight In aid of these damna- 
tory surmises, suggested by the Court, is "the very remark- 
able fact," that the claimants never applied for leave to 
take further proof, and that the claims, as filed, were sworn 
to by the agent and proctor of the claimants, and not by 
them personally. {Ibid., p. 27.) 

The British subject, whose valuable cargo had been con- 
fiscated by this final sentence of the Supreme Court of the 
United States, upon the grounds of fact and of public law 
avowed by that court to be the basis of its judgment, 
represented to Her Majesty's Government the injury and 
injustice which they deemed themselves to have suffered at 
the hands of the prize jurisdiction in the court of last resort, 
and asked for its interposition with the Government of the 
United States for the relief of the injury, and the correction 
of the injustice they had suffered. 

These British subjects supported their representation to 
Her Majesty's Government by the professional opinion of 
two very eminent English lawyers (Mr. Mellish, now Lord 
Justice of Appeal in the High Court of Chancery, and Mr. 
Vernon Harcourt), pointing out certain alleged misconcep- 
tions of evidence and errors of law and fact which exhibited 
themselves in the final sentence of the prize court. 

Her Majesty's Government presents the case for redress 
to this International Tribunal, organized and sitting with 
plenary authority to that end, under the provisions of the 
Treaty of Washington. (Memorial of Claimants; Opin- 
ion of Counsel, pp. 30-35; Memorial of British Govern- 
ment; Proof for Claimants, pp. 39-44.) 

View of the principal matters of proof imported into the 
case before the mixed Commission, and of their relation, on 



THE SPRINGBOK CASE 67S 

the one side and the other, to the matter in evidence heforc the 
prize courts. 

I. The claimants have made full proof that at the time 
the voyage of the "Springl)ok" was j)lanne(l, and when it 
would have brought her to Nassau, there was a markrt at 
Nassau for all the various kinds of merchandise which made 
up the cargo of that vessel. The proof iiuhides evidence of 
numerous business houses established there offering all these 
articles, by public advertisement in the ne\vs|)apers, for s;il»' 
by auction, as well as in ordinary trade. This ])roof is made 
by the production of the original newspapers of Nassau fih'd 
with the Mixed Commission, and pertinent extracts there- 
from are appended to the claimant's petition, (^^«'nlori:d. 
pp. 71-86.) 

Besides this, the claimants have invoked the i)roofs jurti- 
nent to this topic from two other cases pending l)efore the 
Mixed Commission, to wit, the case of John C. Rahming vs. 
The United States, No. 7, and the case of Joseph Eneas vs. 
The United States, No. 126. From these proofs the magni- 
tude, variety, and activity of this market of Nassau for all 
the kinds of goods which make up the cargo of the "Spring- 
bok" abundantly appear. 

Upon the cross-examination of John Norris Sleddon. a 
witness examined in Liverpool in behalf of the Tnited States, 
the claimants have proved this condition of the market at 
Nassau very distinctly. 

Cross-question 27: Has not a larf,'e husiness Ik^mi f()r nmny 
years carried on between Great liritaiii and Nassau, consist iii^' »)f 
the export of all kinds of merchandise from the former to the latter 
place? Answer: A large business was carried on during' the war 
but before and since the business is by no means lar^'e. 

Cross-question 29: Did you at any time during' tlu- war .set- 
any newspapers which had been published at Na.s.sau? Answer: 
Yes; I saw them regularly. 

Cross-question 30: Did not these newspa|)ers conUun nmny 

45 



674 SPEECHES OF WILLIAM MAXWELL EVARTS 

advertisements relating to the sale of all kinds of merchandise, by- 
auction or otherwise? Answer: Yes. (Deposition for Defense, 
p. 25.) 

It is not too much to claim for the proofs on this point 
that they make a commercial adventure which should des- 
patch a cargo, assorted as that of the "Springbok" was, for 
landing and sale in the market of Nassau as natural and 
probable a project as it was safe and legal. Every indica- 
tion, therefore, in the lading of a vessel for that port which 
should suggest its probable "ultimate destination" as look- 
ing to its consumption in the rebel States, so far from raising 
a doubt of its being salable and meant for sale in the market 
of Nassau, would point directly to that conclusion. The mo- 
ment, under this proof of the market at Nassau, it is conceded 
that the "Springbok" was bound to that port as the end of 
her voyage, and was there to unlade her cargo, all suspicions 
or surmises in regard to further projects for any parts of the 
cargo, from their character, are satisfied by the demand of 
the Nassau market for such merchandise for its own enter- 
prises projected, made up and prosecuted from thence. (2-316.) 

II. The claimants make full proof, by unexceptional 
witnesses, of the absolute regularity and conformity to 
every day usage, of the bills of lading, manifest, and form of 
consignment of all parts of the cargo of the "Springbok." 
(Proof for Claimants, p. 33.) 

III. The claimants produce in evidence the various 
original policies of insurance, eleven in number, taken out 
by them on the cargo of the "Springbok," all exhibiting the 
risk insured as beginning at London and ending at Nassau. 
(Memorial of Claimants, pp. 35-71.) 

IV. The claimants produce the deposition of B, W. Hart, 
to the whole of which the most careful attention of the com- 
mission is respectfully asked. 

This deposition shows that the cargo of the "Springbok" 
was consigned to Hart for sale in Nassau and remittance of 



THE SPRINGBOK CASE 675 

proceeds, and as a shipment of ])art of a joint accoiint adven- 
ture for that market, wliieh eovered the carf^'oes of two otlu-r 
vessels whieh arrived and were sold hy Hart in Nassau. 
The cargo of the "Springbok," in anticipation of her arrival, 
was put upon the market in Nassau, and an advertisement 
prepared for the papers, and some portion of the cargo was 
actually sold "to arrive," including the two hoxes markt-d 
buttons mentioned in the o|)inion of the Supreme Court. 
The letter of consignment of the three cargoes was r«'<»'iv«d 
in due course of mail by way of New York, and was as 
follows : 

71 Jermyx Strkkt, London', 

Deccml)er 1!). IHCj-i. 
B. W. Hart, Esq., Nassau. 

Dear Sir: By this mail we send you duplicates of invoices of 
shipments on joint account of ourselves, T. Stirliiif^ He^hie, E-stj.. 
and Messrs. Moses Brothers, per "Aries," "Spriii^'hok." and 
"Justitia." Duplicate bills of lading are enclosed. We 1ii)|h' 
these goods will arrive to a good market, realize ^'ood {)rii-es, and 
that you will he able to remit to lis without loss of time, money being 
much wanted here at present. 

(The bank rate was rising.) 

The deposition of Mr. Hart shows that the cargo of the 
"Justitia" arrived at Nassau (having been transshipped at 
Bermuda) in January, 18G3; was sold in the market there, 
and the proceeds remitted, and that the ".\ries" .saileil 
from England November 28, IHii'-Z, and arrived at Nassau 
January 20, 1863, when her cargo also was thcrr s..Id by 

Hart. 

The deposition also proves the valuation of the cargo of 
the "Springbok" as made at Nassau in May. lS(i:{. and. 
according to the market i)rices current in February. 1S«;3. 
amounting to £60,378 lis. lid. (Depositicm of Ilarl ; I'nx.f 
for Claimants, pp. 33, 38.) 

Upon this deposition of Hart it is impos.>ible to avoid the 



676 SPEECHES OF WILLIAM MAXWELL EVARTS 

conclusion that too rash a substitution of surmise for evi- 
dence, and of conjecture for facts, led the Supreme Court 
away from the true function of the prize jurisdiction, 
dealing only with the voyage intercepted, and involved it in a 
condemnation of the system of trade of which Nassau had 
become the entrepot. 

V. Upon the proofs invoked by the claimants from the 
case of John Riley vs. The United States, No. 442, before the 
Mixed Commission (being the case of the barque "Spring- 
bok"), an inspection of the documents exhibits the singu- 
lar error of fact with which the Supreme Court started in 
its inspection of this cargo for evidence of guilt. What the 
Supreme Court calls "arms" and counts as "sixteen dozen 
swords" and "ten dozen rifle bayonets," upon the actual 
proofs in the prize cause itself, turn out to have been one 
sample case, containing one dozen cavalry swords and one 
dozen rifle bayonets. (Case of Riley vs. U. S., page 156; 
Case A 1406. 

The depositions of Thomas May, Edward Russel Cummins 
and Thomas Stirling Begbie, forming part of the "Deposi- 
tions for Claimant" in case of Riley vs. United States, and 
found at pages 1 to 11, exhibit the perfectly neutral char- 
acter of the voyage and cargo of the "Springbok." 

An examination of the "marshal's return" to the prize 
court of the sale of the cargo of the "Springbok" exhibits 
the utter msignificance of what the Supreme Court regarded 
as contraband, or quasi contraband, and suffered to carry 
such widespread infection through as inoffensive a cargo of 
dry goods, haberdashery, and groceries (see catalogue of 
sale on file with Commission), as ever crossed the ocean, 
and to impart such disastrous weight in determining the 
injurious surmises under which the condemnation of the 
entire cargo passed. 

It will be found that the proceeds of the "swords and 
bayonets" were but $35, and of the "mihtary and naval 



THE SPRINGBOK CASE 677 

buttons" but $235, showing for "arms and inuiiilioiis of 
war," in the language of the Supreme Court, but $470 out 
of gross proceeds of entire cargo of nearly .$'-2Jl),()()(K 

Again: if the proceeds of the qua,n contraband — the 
so-called army blankets, etc., and the ten kegs of saltpetre 
be added — the whole will come to less than one per cent 
of the proceeds of cargo at the marshal's sale. 

VI. The claimant's proofs displace entirely the theory 
upon which the Supreme Court satisfied itself that the 
steamer "Gertrude" was to receive the cargo of the "S|)ring- 
bok," the transshipment of which the Court imagined .slu- 
had been sent to receive, and was awaiting in the port of 
Nassau, when the capture of the "Springbok" disappointed 
the project. 

The proofs show that on the third day uf February, 18(53, 
when the "Springbok" was captured off Nassau, the "(n-r- 
trude" was lying off Queenstown , in Ireland, having arriv«'d 
there from Greenock, January 31. 

The log of this voyage and the deposition of James 
Raison, master of the "Gertrude," established these facts 
beyond controversy. (Claimants' Memorial, pp. 17 to 19.) 

The proofs invoked from the case of the "Clertrude" 
upon the trial of the "Springbok" showed that the "(Jer- 
trude" received her lading at Nassau on the eighth day of 
April, and there is no evidence of her earlier i)resence m 
that port. (Case of Riley vs. U. S., pp. 171-2.) 

Proofs Adduced by the United Statf^j. 

I. The United States examined, on due notice, one witness, 
John Norris Sleddon, whom the claimants duly cross-ex- 
amined. 

The only purpose or effort of this evidence is to attempt 
to show that T. Stirling Begbie, one of the clainumts of the 
cargo of the "Springbok," had been, or ha.i the r.putation 
of having been, connected with blockaide-running i)roj<Ht.s 



678 SPEECHES OF WILLIAM MAXWELL EVARTS 

and voyages. These trading enterprises with which the 
witness attempts to connect Mr. Begbie were all a year or 
more later in date than this voyage of the "Springbok." The 
witness is not asked about "Moses Bros.," and knows noth- 
ing about "S. Isaac, Campbell & Co.," the other claimants, 
in this connection. 

All that the witness contributes to the case respecting the 
"Springbok" or her voyage is as follows: 

Cross-question 51: Do you of your own knowledge know any- 
thing of the cargo of the "Springbok," or of the circumstances 
under which it was shipped from London? Answer: Of my own 
knowledge I do not. I simply know of the transaction by having 
heard Mr. Begbie speak of it during the war. 

Cross-question 52: Can you tell when you first saw Mr. Begbie? 
Answer: It would be about the latter end of 1863. (Deposition 
for Defence, pp. 13, 14.) 

The United States permit this witness to sum up his knowl- 
edge and wisdom about this case as follows : 

Re-direct 22 : Do you wish to make any special remark in regard 
to the "Springbok" or her cargo? With respect to the "Spring- 
bok" herself, that is, the vessel, I have no doubt, from my knowl- 
edge of the trade, that Nassau or Bermuda was her ultimate des- 
tination, and I have no idea that she ever intended to run the block- 
ade; but with respect to the cargo, from my knoivledge of Mr. 
Begbie s connection with blockade-running, I should judge that it 
was intended for the blockade ports, whether sold or unsold at 
Nassau or Bermuda. 

It is apparent that on this estimate of the case against 
the cargo, no condemnation could be asked, for the sale in the 
market at Nassau seemed to the witness as probable a project 
of these parties as any other. 

II. The United States have produced, under the simple 
authentication of the certificate of "Geo. M. Robeson, act- 
ing Secretary of War," dated April 7, 1873, what purports 
to be copies of letters and accounts, being "extracts from the 



THE SPRINGBOK CASE G7f) 

records of the so-called Confederate States of America, cap- 
tured by the forces of the United States, and now hein;; in 
the custody of this Department; the extracts heinj^ all that 
pertains to the case of S. Isaac, Campl)ell & Co.. in tin- 
documents from which they are made." 

These papers covered a period from Januart/, \H(H, to 
July, 1864, that is, for a period beginning a year before the 
voyage of the "Springbok" commenced, and ending eighteen 
months after the capture. 

The object and bearing of this evidence, in favor of the 
United States, are simply to show the range and extent of 
the commercial undertakings of the house of S. Isaac. Camp- 
bell & Co., of London, in supplying the wants from foreign 
trade of the people and authorities of the rebel States. The 
papers, undoubtedly, tend to show a conunercial interest in 
favor of the "Confederacy," active and open, just as other 
prominent London houses espoused and aided, conunereially. 
and much more extensively, the other belligerent in tin- pend- 
ing war. 

Upon what principles this evidence, thus certified, is siij)- 
posed to carry authority for its admission in this tribunal 
of international authority, is not readily perceived. The 
claimants suppose themselves at least to have been entith-d 
to notice and cross-examination, and the production of coun- 
tervailing evidence from the same public repository. 

But the real importance of this great draught of evidence, 
thus fished up, is, from the unlimited exploration of all the 
dealings of this firm and any of its agents or correspondents, 
and of the agents and correspondents of the commercial <>r 
public interests of the people or Government of the rebel States, 
to demonstrate by the most exhaustive negative imaginable, that 
the voyage and cargo of the '' Hpringboir were not embraced or 
touched by any of these dealings thus explored, and thus are 
placed above suspicion as a mere commercial consignment to the 
market of Nassau. 



680 SPEECHES OF WILLIAM MAXWELL EVARTS 

III. The United States have also included in the same 
"Proofs for Defence," and covered by a similar certification, 
a contract of *'T. Stirling Begbie," bearing no date, but 
evidently made after December, 1863, for providing steamers 
(to run to blockaded ports presumptively), and some appurte- 
nant transactions not very definite or important. (Proofs 
for Defence, pp. 83-90.) 

The same observations apply to the proofs, thus intro- 
duced, in respect to the claimant Begbie as are made above 
in respect of the claimants, S. Isaac, Campbell &. Co. 

We have thus a complete exhaustion of the transactions of all 
the claimants, deemed questionable, and a demonstration that the 
voyage and cargo of the "Springbok" lay outside of, and are not 
touched by, the unneutral dealings. 

ARGUMENT 

Importance of the case. 

The case of the "Springbok," as it stands upon the hst of 
the Mixed Commission, and is to be determined by their 
judgment, is justly considered by the publicists of the two 
nations for the settlement of whose reciprocal grievances, 
arising during the period of the late civil war, this interna- 
tional tribunal has been established, and, not less, by the 
publicists of Continental Europe, as of capital importance. 

In the first place, the case as a prize cause, to be passed 
upon according to the procedure and principles of that spe- 
cial jurisdiction, was both novel and interesting. Accordingly 
it excited much attention from learned authors and eminent 
diplomatists, while it was sub judice in the prize court of the 
first instance, and far greater when it reached the Supreme 
Court of the United States, of so great authority on the law 
of nations, where it was, as a mere question of prize, finally 
determined. 

But when the actual judgment of the Supreme Court of 
the United States was announced, carrying the condemnation 



THE SPRINCHOK CASE fiHl 

to the extent, and su])porliiii,' it upon tin- principlr.s of law 
and of evidence whicli that judgment (Iftlan-d. tin* intrn-st 
of pubHcists and of statesmen in the east* and thr ({iicstioii 
was quickened and extencK'd. 

The extreme pretentions of hcllij^ercnt ri^lit to sultju^alr 
neutral commerce to its necessities, wliicli this coiidciinialion 
imported, and the wide influence upon neutral <ouitn<Tct* in 
time of war whicli was to follow, if this iu*w iu>tun«»- of 
prize law, as declared hy the Court of a iMllimrrut . siiouhi 
be accepted by the great nuiritinie jjowcrs as n-^Milalin^' tin- 
duties of neutrals in the future, made the cii-se one o{ atten- 
tive consideration and responsible discussion with the prin- 
cipal Cabinets of Europe, as well as of representation on tiie 
part of Her Majesty's Government to that of the \ nited 
States. 

It may be considered as a fortunate circumstance that the 
dispersed protracted debate to which, otherwise, this whi»le 
subject would have been destined, without any prosiM-t-l of 
definite solution until, unhai)pily, liie i)ri/.e jurisdictiiui of 
some maritime power should again be invoked to pass upon 
it, is so quickly superseded by a submission of tin- contr<»- 
verted public doctrine to a tribunal of the credit and dignity, 
under the law of nations, of this Mixed Commission. This 
delegated authority represents the great commercial mitions 
of Great Britain and the United States, and of I'nited Italy, 
whose great share in the past history of the world's public 
law and of the world's commerce nuiy yet be rivaled in the 
growing fortunes of her new kingdom. 

The claimants of the condemned cargo of the " Springbok " 
mill be entitled to restitution and indemnity from tin- Imtrd 
States in ca^e the Mixed Commis.non shall he .sati.sfud of nthrr 
of the three following propositions: 

I That the actual judgment of the Supreme Court of the 
United States has disregarded the essential i.ruu ipU-.. of tlie 



682 SPEECHES OF WILLIAM MAXWELL EVARTS 

prize jurisdiction (by whose adjudication, and not other- 
wise, do neutral nations submit to have the fortunes of their 
subjects' maritime property even prima facie determined), 
in its condemnation of the cargo of the "Springbok," irres- 
pective of any conclusion as to what the probable fate of the 
cargo would have been, after a trial in which the principles of 
the prize jurisdiction had been properly adhered to. 

In other words, the function of this tribunal is to restore the 
property if not properly condemned by the prize court — not to 
revive the prize jurisdiction and recondemn the property; or, 

II. That, upon the facts of the case, as apparent upon the 
trial of the prize cause and made the basis of the condemna- 
tion by the Supreme Court, there was no adequate ground 
for the conclusions drawn therefrom by the Court to the 
condemnation of the cargo; or, 

III. That, upon the facts of the case, upon the whole 
proofs as now presented to the Mixed Commission, the 
judgment of the Supreme Court is shown to have been 
erroneous in its misconception or misconstruction of facts, in 
its adoption of conjectures, now shown to be baseless, in 
place of awaiting proofs, or in its acceptance of false rules 
of guilt, in place of the true doctrines of the law of nations, 
upon which the question of guilt or innocence is deter- 
minable. 

General principles of the prize jurisdiction which need to be 
considered: 

I. As the ownership of both vessel and cargo, and the 
scheme and conduct of the voyage and its commerce (what- 
ever the latter may be held to have included of ultimate 
destination in its project), were wholly British, it is manifest 
that the limits of all possible discussion in the case must be 
confined to the question whether the actual interference with 
the said voyage and commerce, and the confiscation of the 
whole cargo by the United States, one of the belligerents. 



THE SPRINGBOK CASE 6g3 

was within the submission of neutral nations of tl„. frcftloni 
and inviolabihty of thoir maritime eomnieree to (he i'xi^r,-n- 
cies of belHgerent right. If in the (k'hberate au.l enligl.tene.l 
judgment of this tribunal it shall l)e so held, then belligerent 
right, and neutral subjection to it, will have received an 
authentic exposition the wide conseciuences of which il 
would be difficult to overestimate. If, on the other hand, 
this tribunal shall reject this pretension and extension of 
belligerent right, as beyond the warrant of the law of nations, 
this excess of belligerent power will be condenmed as such, 
and, instead of its spreading its evil example in the fiitiin-, will 
become a barrier against future attempts uj)()n thai just 
liberty of neutral commerce which is the great interest that 
civilization and morality oppose to the passions and cupidity 
of maritime warfare. 

II. The recognized belligerent right to pursue the enemy's 
commerce upon the high seas, and the re|)iigiiaiit neiilral 
right to maintain its commerce upon the high seas iinaireete.l 
by a warfare to which it is not a party and should iiol he a 
prey, have brought about, in the interests of peac*" and in 
recognition of the necessities of belligerents, a certain degree 
and measure of concession on the part of neutrals to tin* ex- 
igencies of the war, of which, not transcended, they will bear 
the molestation without resentment. 

For the purposes of the present discussion, the adjust nn-nt 
of this conflict betw^een belligerent and neutral rights and 
interests, which constitutes the law of nations on this sub- 
ject, may be stated as follows: 

(a) Enemy property, as such, and without oth<r f«ature 
or inquiry, being exposed to capture or destruction by the 
hostile power, and neutral property, as such siwplicihr, 
being absolutely exempt from capture or tieslrnetion i)y 
either belligerent, neutrals consent that the verification of 
the character of the i)roperty, as being neutral or JM-lligen-nt. 
shall be submitted to by neutrals, hy ri.sitalwn and search 
at sea. 



684 SPEECHES OF WILLIAM MAXWELL EVARTS 

(b) Further interference with the voyage or property, 
neutrals do not permit, unless by the visitation and search, 
and from what is then and there disclosed respecting the 
voyage and property, some fault or defect in the enterprise, 
as really neutral, exhibits itself to the visiting cruiser. In 
that case, and in that case only, neutrals permit, not confisca- 
tion or destruction, or the least spoliation of property or 
molestation of the ship's company, but capture and submis- 
sion to the prize jurisdiction for its more deliberate examina- 
tion, and more competent decision. 

(c) Neutrals require that the prize investigation shall be 
limited to the evidence that the voyage, vessel, and ship's 
company supply, and to the issue whether the capture was 
warranted by what that evidence discloses; and this condi- 
tion of the prize investigation is not a question of form, 
practice, or procedure, but an essential limitation of the sub- 
mission of neutrals in the degree and nature of the interfer- 
ence with their commerce that they will tolerate. 

The moment you depart from this vital principle of the 
prize jurisdiction, to wit: that the capture is to be judged of 
as it was made, and on the evidence on ivhich it was made, 
and the captors acquitted or condemned in damages or costs, 
and the belligerent nation held to accountability by the 
offended neutral according to the facts as appearing on the 
capture and the evidence of the prize itself, you subject 
neutral commerce to an unchecked and speculative cupidity 
of captors, and to delays and miscarriages of visitation and 
search in Court for suspicion, and of remote and crippled 
litigation to establish guilt or innocence, by imputed or ex- 
traneous evidence, which neutrals never have submitted to, 
and never can tolerate. 

(d) The practical maintenance of this great safeguard of 
neutral commerce against speculative or hopeful capture 
(upon the calculation that something may turn up to justify 
it and make it gainful), and against practices upon the prize 



THE SPRINGBOK CASE 685 

court in the way of simulated or specious evidence, or 
against the Court's own unchecked surmises or ima^'inative 
ingenuity, is secured by the firm and undeviating rule of 
the prize courts never to admit further proof as part of the 
original inquiry, never to admit it upon the motives or the 
interests of the captors or the claimants, hut always to intro- 
duce it, if at all, upon and for a resolution of the difficult ics 
which the primary evidence itself raises, and for the clearing 
of which, for the Court's conscience in the adjudication, and 
in the mere motive of assurance in its justice, it seeks for 
light, till then forbidden. 

Accordingly, further proof is never admitted to raise a 
doubt, nor, on the other hand, is a doubt, difficulty, sj)ecula- 
tion, or surmise, which the primary proof raises in the mind 
of the court ever suflScient to draw or sustain any other deter- 
mination of the matter in hand, than to order further proof. 
An adjudication of condemnation never proceeds upon a 
doubt or difficulty raised upon the primary proofs. The 
only question is, and the prize courts consider that a grave 
one, whether the doubt or difficulty is of such substantial 
character as to put the neutral to the delay and expense 
of further proof, or whether acquittal should follow, although 
without full assurance of its duty. 

When further proof is ordered from a claimant, it is upon 
a consideration that it will be just to condenm on the 
primary proofs, if the damnatory features are not susceptible 
of explanation, but not just to assume they are not suscepti- 
ble of explanation, without opening an opportunity of ex- 
planation by extraneous evidence. 

But a prize court, which observes the true principles of its 
jurisdiction, never admits doubts or difficulties from extra- 
neous sources and demands further proof to allay tlieni; <»r, 
if this last proposition, in extreme cases, should be (lualified, 
no prize court ever admits doubts or difficulties from extra- 
neous sources, and proceeds any further upon tlicm to tlie 



686 SPEECHES OF WILLIAM MAXWELL EVARTS 

prejudice of the claimant, than to order further proof. It 
would be a complete subversion of the essential principles 
of the prize jurisdiction to accept suspicions and surmises 
from extraneous evidence, and proceed upon them as ade- 
quate, without having opened them to correction by further 
proof. 

(e) When the neutral character of the property is unques- 
tionable, then the limits of visitation and search, capture, 
investigation, primary judgment, further proof, and final 
adjudication above insisted upon are applicable, even more 
stringently, to the only point of enquiry for the prize juris- 
diction, to wit: Whether the property and commerce, 
being neutral, are affected with any unneutral participation 
in the war that exposes them to interference by capture and 
the property to confiscation by any of the rules of the law of 
nations accepted between belligerents and neutrals, as 
abridging the freedom of neutrals' commerce. 

We say these limitations of belligerent right are more 
stringent, in the admitted situation of the property and voy- 
age being really neutral in interest and management, than 
in the controversy whether the property is enemy or neutral. 
The moment it is decided to be enemy, there is an end of 
rights on the one hand or of limits of power on the other. 

But when the question is of unneutral dealing in the com- 
merce owned and pursued by neutrals, then all presumptions 
favor exemptions — the burden of proof lies wholly on the bellig- 
erent. No duty of the neutral requires it to regulate its trade, 
except so far as to have it free from unneutral participation 
in the war, and interception and vexation, even of neutral 
commerce, on speculative grounds, are justly resented by 
the neutral nation. 

An observance by the belligerent of all limitations in his 
right of search, capture, and adjudication is justly expected 
when it is indisputable that the limit is and has been under- 
stood to be, what might be lawfully done by a belhgerent 



THE SPRINGBOK CASE 0H7 

to a neutral, not whether tlie interest toiulu'd was really 
enemy and only fraudulently neutral. 

(f) Neutral nations submit to have their maritinu- coiii- 
merce and voyages interfered with by cai)ture, detention, 
and prize adjudication only when the voyage is being pur- 
sued : 

(1) In the carriage of contraband in trade with a l)i'lligtT- 
ent; or, 

(2) In a voyage to a port of a belligerent, with wlial.vrr 
cargo, which is actually blockaded by the other belligennl ; 
and, 

(3) In either case the neutrals linut the exposures of the 
voyage or the property that they will tolerate, to capture 
while in delicto, that is, during the voyage to the deposit of 
the contraband and return, in the one case, and during the 
voyage to the blockaded port and return, in the other, and 
under no other circumstances. 

(g) It will be perceived, therefore, that the i)re(ii(anient of 
lawful condemnation of a vessel or cargo in(uli)at«'d for 
traffic in contraband or breach of blockade involves a defi- 
nite voyage between the terminus a quo and the terminus 
ad quern, on which the guilty vessel is captured, and that 
this arrest in delicto is as necessary to a condenuiation as the 
guilt itself. 

Neutrals are unwilling that their commerce shall b»' vexed 
and harassed by any interference with vehicle or cargo, 
except by interception while on the voyage in which the con- 
traband cargo is to be or has been (lej)osited, or on I he very 
voyage in which the blockade is to be or has been penetrated. 

These principles of the jm/c jurisdiction are believed to be 
indisputable and of universal authority. It is only necessary 
to recall to the attention of the tribunal a few |)assag«'s from 
elementary writers on the subject. 

Thus Sir William Scott and Sir John Nicholl>. in their 
celebrated letter to John Jay. rnited States nnnister to 



688 SPEECHES OF WILLIAM MAXWELL EVARTS 

England (quoting from and approving the most eminent 
English authority), say: 

By the maritime law of nations, universally and immemoriably 
received, there is an established method of determination whether 
the capture be or be not lawful prize. 

Before the ship or goods can be disposed of by the captors there 
must be a regular judicial proceeding wherein both parties may be 
heard, and condemned thereupon as prize in a court of admiralty, 
judging by the law of nations and treaties. 

The evidence to acquit or condemn with or without costs or 
damages must in the first instance come merely from the ship taken, 
viz. : the papers on board and the examination on oath of the master 
and other principal officers. 

If there do not appear /rom thence ground to condemn as enemies' 
property or contraband goods going to the enemy, there must be 
an acquittal, unless from the aforesaid evidence the property shall 
appear so doubtful that it is reasonable to go into further proof 
thereof. 

Though from the ship's papers and the preparatory examinations 
the property does not sufficiently appear to be neutral, the claimant 
is often indulged with time to send over affidavits to supply that defect. 

When the property appears from evidence not on board the ship 
(that is upon further proof allowed the claimant) the captor is 
justified in bringing her in and excused costs because he is not in 
fault. 

In this method all captures at sea were tried during the last war 
by Great Britain, France and Spain, and submitted to by the 
neutral powers. In this method by courts of admiralty acting 
according to the law of nations and particular treaties all captures 
at sea have immemorially been judged of in every country " of 
Europe. Any other method of trial woidd be manifestly unjust, ab- 
surd, and impracticable. 

From the further observations of this letter of Sir William 
Scott and Sir John Nicholl it appears that — 

Upon an appeal fresh evidence may be introduced, if upon hear- 
ing the cause the lords of appeal shall be of opinion that the case is 



THE SPRINGBOK CASE fiSO 

of such doubt as that further proof might to hare been ordered by the 
court belmv. 

The degree of proof to be required depends up«»u the dcprw of 
suspicion and doubt that belongs to the cjise. In eases of heary 
siispicion and great importance, the court nuiy order what is eallt-*! 
"plea and proof"; that is, instead of admitting affidavits and 
documents introduced by the claimants only, each i)arty is at lil)- 
erty to allege, in regular pleadings, such circumstances jus nuiy tend 
to acquit or condemn the capture, and to examine witnesses in 
support of the allegations to whom the adverse party may admin- 
ister interrogatories. (Letter of Sir William Scott and Sir Jolm 
Nicholl; Story on Prize Courts, by Pratt, pp. .S 10.) 

From Judge Story's note to 1 Wheat. Hep., we (piote as 
follows : 

It is upon the ship's papers and depositions thus taken and trans- 
mitted that the cause is, in the first instance, to he heard an<i trie<l. 
This is not a mere matter of practice or form ; j7 j'.v of the very c.v.vrnrr 
of the administration of prize law; and it is a great mistake to admit 
the common law notions, in respect to evidence, to avail in jjnn-eed- 
ings which have no analogj' to those at common law. 

By the law of prize, the evidence to acquit or condemn must, in 
the first instance, come from the pai)ers and crew of the captur«'d 
vessel. The captors are not, unless under peculiar circumstances, 
entitled to adduce any extrinsic testimony. 

But whether such further proof be necessarA- or admissible, can 
never be ascertained until the cause has been fully heard ij|M»n the 
facts, and the law arising out of the facts already in evideni-e. 
And in the Supreme Court, during the whole of the late war no fur- 
ther proof was ever admitted until the cause had IntMi first lieanl 
upon the original evidence, although rarious application:! were 
made to procure a relaxation of the rule. 

Further proof is in all cases necessary \\lKTe .... the 
defects of the papers, the conduct of the parties, the natun- of the 
voyage, or the original evidence in general, iiidiK-es any doubt of 
the proprietary interest, the legality of the trade, or the inlegnly 
of the transactions. 

In cases where further i)rot)f is admitted on Ixjhalf of the captors. 



690 SPEECHES OF WILLIAM MAXWELL EVARTS 

they may introduce papers taken on board another ship, if they 
are properly verified by affidavit; and they may also invoke papers 
from another prize cause. Story on Prize Courts, (by Pratt,) pp. 
17, 18, 24, 25, 26. 

The French regulations were thorough and peremptory on this 
subject of the confinement of the proof to the papers and persons 
on board of the prize. (Quoted in note to Story on Prize Courts, 
p. 17.) 

Complete jurisdiction and authority of the Mixed Commission 
to redress any injury or injustice suffered by the claimants in 
the prize cause by the sentence therein. 

This tribunal has already and repeatedly had occasion 
to consider its powers, and has not hesitated to exercise 
them in according reparation to claimants who have suffered 
from an unwarranted sentence of a prize court. That the 
sentence complained of as a grievance was pronounced by 
the highest tribunal of the jurisdiction, so far from being a 
reason why the ofifice of redressing the injury should be de- 
clined by this Mixed Commission, it is, as we all know, a 
condition required by the principles which govern such 
international commissions, and insisted upon by this tri- 
bunal, that the aggrieved parties should have exhausted 
their right to appeal in the municipal jurisdiction before 
they have a standing in the international court for the invo- 
cation of its justice. 

It is important to recall, what is not to be controverted, 
that the doctrine of res judicata — a matter adjudged and not 
to be judicially re-examined — has no application to the situa- 
tion in which the sentence of a prize court is presented for 
the review to such a tribunal as this Mixed Commission. 

The sentence of a prize court binds everywhere upon the 
two points: (1) of change of property in the res warranted 
by the condemnation, and (2) the justification of the captors 
against all personal recourse or question for their acts else- 
where. 



THE SPRINGBOK CASE (i;)l 

For the rest, the prize jiirisdictioii is hut an iiujiiisitioii 
held by the Government throii^'li its special court of prize 
upon the capture (which has been made under its assumed 
instruction and authority by the cruiser), to drtcriiiiuc 
whether such capture shall be assumed and justified by the 
Government as in obedience to its warrant to tlie cniiser. 
and in conformity to its views of belligerent rij^dit. If it be 
found upon this inquisition that the capture is so justified, 
the act is adopted by the Government, and responsibility 
therefor assumed towards the neutral power, and from that 
moment only does the matter become one of direct recourse 
and accountability between the two nations. Sucii is (lie 
situation here in the matter of the cargo of the "Springbok" 
between the Government of Great Britain and that of tin- 
United States. 

Accordingly Wheaton says: 

The jurisdiction of the Court of the capturing nation is con- 
clusive upon the question of property in the captured thing. Its 
sentence forcloses all controversy as between claimant and cajitors 
and those claiming under them, and terminates all ordinary judicial 
inquiry upon the subject-matter. When the responsibility of the 
captor ceases, that of the capturing State begins. It is responsihlc 
to other States for the acts of the captors under its eonunission the 
moment their acts are confirmed by the definite sentence of tlie 
tribunal which it has appointed to determine the validity of 
captures in war. 

An unjust sentence must certainly be considcrt-d a denial of 
justice, unless the mere privilege of being heard In-fore eonden.iia- 
tion is all that is included in the idea of justice. 

The moment the deci.sion of the tribunal of the last n-M.rt hus 
been pronounced (supposing it not to he warranted l.y the fa<-ts ..f 
the case, and by the law of nations applied l<. these facts), an.l 
justice has been thus finally denied, the capture and the eondenmn- 
tion become the acts of the State, /or uhirh the State is rrsiMms,hU 
to the Goveryiment of the claimant. (Wliealon's Dlemeuts. |mrt l\ .. 
ch. 2, sec.l5.) 



692 SPEECHES OF WILLIAM MAXWELL EVARTS 

The attention of the Mixed Commission has been re- 
peatedly called to the precedent of the authority exercised 
by a similar commission under the British treaty of 1794, 
and of the discussion between the British and American 
commissioners on the point, the American commissioners 
sustaining the fullness and supremacy of the jurisdiction 
which the British commissioners questioned. The disposi- 
tion made of the doubt by the Lord Chancellor (Lough- 
borough), in his answer to the fifth commissioner, Colonel 
Trumbull, who had submitted the point for his advice, is 
well knowTi: 

The construction of the American gentleman is correct. It was 
the intention of the high contracting parties to the treaty to clothe 
this commission with power paramount to all the maritime courts 
of both nations — a power to review and (if in their opinion it should 
appear just) to revise the decisions of any or all the maritime courts 
of both. (Trumbull's Reminiscences of his Own Times, p. 193.) 

In the discussions of the "Tribunal of Arbitration" at 
Geneva, the question came up upon the effect of the sen- 
tence of the Vice Admiralty Court at Nassau, acquitting 
the "Florida," on libel of the Crown, for violation of the 
neutrality act of Great Britain. As is well known, the 
tribunal held Great Britain responsible for the "Florida," 
notwithstanding the adjudication of its admiralty court 
having jurisdiction. 

Posture of the memorialists representing the cargo of the 
*' Springbok,'' and asking indemnity for its confiscation. 

The claimants in the prize court of the cargo of the 
"Springbok," viz., the firm of S. Isaac, Campbell, and Co., 
of London, and Thomas Stirling Begbie, also of London, are 
the memorialists here. 

The firm of S. Isaac, Campbell & Co., was at the time of 
these transactions, composed of Samuel Isaac and Saul 
Isaac, and had no oXhev partner. (The duly accredited 



THE SPRINGBOK CASE 693 

attorney-in-fact of the memorialists, before tliis commission, 
Dugald Forbes Campbell, Esq., of London, whose |)o\v«'rs 
duly verified are filed with the Commission, is not to !>«' 
taken, from the name of Campbell appearing in the firm of 
S. Isaac, Campbell & Co., to have had any connection with 
the transactions of the voyage of the '*Si)ringbok." That 
firm had no partner of the name of Campbell, as is shown in 
the prize causes and in the ])resent memorial. Mr. I). 
Forbes Campbell represents the existing interests in the 
claim, which, as is stated in the memorial, are largely those 
of creditors of the original parties.) 

Though the wdiole legal interest in the cargo, at the time 
and since, was in these merchants, yet, in respect of one 
undivided third of the cargo, one Joseph Moses, trading 
under the firm of Moses Bros., of London, had a beneficial 
interest or trust. One of the bills of lading of teas, coffee, 
and groceries, being six hundred and sixty-six packages, 
names Moses Brothers as shippers. (Memorial, p. 2; H. L. 
No. 6, Proofs in Prize Cause.) 

The decree of the district court. 

This may be dismissed in a few words. Its pnri)ort an.l 
reason have been given already in the "Statement" which 
forms a part of this argument. 

The condemnation of vessel and cargo there pronoimccd 
involved no novel, difficult, delicate, or dangerous d.Ktrme-s 
of prize law. It proceeded on the ground that the "Sprmg- 
bok" and her cargo were bound for a blo<kade<l port, an.! 
that the papers of the voyage t.. Nassa.i w.-rc fals.- and 
simulated. No criticism of this as a legal gr..>.nd ..f con.len»- 
nation is possible. There is one fatal objectmn \o the .sen- 
tence, and that is, there is not the least support m the evi- 
dence for the conclusions of fact so rashly arnve.l at by the 
court. It was a violent injustice, an.l Us gr.»un.l ..f .-n- 
demnation has been flatly rejected by the Supreme ( ourt. 



694 SPEECHES OF WILLIAM MAXWELL EVARTS 

The Supreme Court's sentence of restitution of the ship, and 
its condemnation of cargo, on the theory of a projected 
further voyage of the cargo, by transshipment, to a block- 
aded port, are equally inconsistent with the sentence of the 
district court and its reasons. The decree of the Supreme 
Court is a complete answer to that of the district court. 

It is only the condemnation of the Supreme Court, and 
the grounds of it, that will be further treated in this argu- 
ment. 

The grounds on which the Supreme Court draws its damna- 
tory conclusions ON QUESTIONS OF FACT examined. 

We have presented in detail, and in connection in the 
"Statement," which forms part of this argument, the 
various items of imputation or suspicion to the prejudice of 
the cargo of the "Springbok" upon which the Supreme 
Court based its condemnation. It is now our purpose to 
subject each one of these items, which collectively make up 
the whole case upon which the decree of the Supreme Court 
rests, to the test of a careful and candid examination. 

I. The bills of lading did not set forth the contents of 
1,388 packages, naming the contents of only 619 packages, 
and the manifest followed the bills of lading in this respect. 
The only imputation from this form of description of cargo 
in these mercantile documents made against the integrity of 
the enterprise, as within the freedom of neutral commerce, is 
"the desire of the owners to hide from the scrutiny of the 
American cruisers the contraband character of a considerable 
portion of the contents of these packages." 

This objection to the regularity of the documents will not 
bear a moment's attention. 

(a) The discrimination made between packages of which 
the contents are mentioned and those of which the contents 
are not mentioned, turned entirely upon the trade regula- 
tions of Great Britain and not at all upon the contraband or 



THE SPRINGBOK CASE 09j 

peaceful nature of the contents. The teas, coffees, spices, 
and groceries, which were mentioned as contents of j)acka^'es, 
were not the growth of Great Britain, and liad l)et'n im- 
ported. The re-exportation from (Ireat Britain of tliese 
articles, as matters of revenue and trade returns, re(|uires 
their description in the documents of exjxjrtation if tlie 
shippers are to have the advantage of the customs regula- 
tions in that behalf. This accounts for the m(>ntion of con- 
tents in these packages, and shows the absence of sinister 
motive or design in the discrimination which is looker! u|)<)n 
with suspicion. 

Thus we find it stated in the i)rize cause that the "cargo 
books" found on board exhibited all this, and the following 
"memorandum" is entered in the cause: 

Mem. — The cargo-book, marked K, contained a list of all the 
cases, casks, barrels, etc., with their corresponding,' marks and 
numbers, with their length, breadth, and solid contents, all tally- 
ing with the bills of lading, and enumerating the articles not the 
product of Great Britain, namely — tea, pepper, coffee, ginger, and 
cloves. (Memorial, etc. in Riley vs. The United States, No. 44^, 
p. 132.) 

(b) But of the 1,388 packages, the contents of which were 
not set forth in the bills of lading or the manifest, or the 
cargo book, confessedly, no more than some twenty-odd 
contained anything that was not as innocent as the teas or 
spices; "Scotch ginghams," "cotton handkerchii-fs," 
"printed muslins," "shirts," "drawers." "gloves," "spool 
cotton," "needles," "gaiters," "cloths," in great quantities, 
made up the cargo. The omission to nanu- these contents 
could be imputed to no motive of concealment, and is, 
manifestly, answered by the conformity to e very-day com- 
merce, which made such details in voyages from Great 
Britain to her colonies, wholly insignidcant . and ih.nforr, 

burdensome, 

(c) But the so-called contraband on boanl which, like a 



696 SPEECHES OF WILLIAM MAXWELL EVARTS 

needle in a hay-stack, was to be hidden by this cunning con 
trivance, might have been named with perfect impunity, 
and by full commercial description, and no cruiser would 
have imagined evil therefrom. Take the sample case with 
a dozen swords and a dozen bayonets ! Is that worth hiding? 
Is that to expose a cargo of groceries and dry goods? Was 
it to carry that to the armies of the rebellion that £60,000 
worth of innocent cargo were to be risked? Then the but- 
tons! "Two cases of buttons" would have been all that 
they would have designated on a bill of lading or a ship's 
manifest, under the most exacting precision. What ex- 
posure would have come from this? 

So, too, the twenty bales of blankets and the ten kegs of 
saltpetre, or nitrate of potash, such a description would have 
been a matter of the utmost indifference, as items in a cargo 
like this. 

(d) But the whole argument of guilty motive, to escape 
suspicion from the visiting cruiser by the suppression of 
contents, refutes itself. 

Its whole weight rests upon the idea that honest neutral 
cargo would, regularly, give its contents in the bills of lading 
and manifest; and to avoid suspicion, these shippers thrust 
in the face of the boarding officer documents on their face 
betraying irregularity, concealment, guilt! Why, the only 
reason the captors have ever suggested for sending in the 
"Springbok," was, the bills of lading and manifest not dis- 
closing the contents. To be sure, under the light of the 
evidence, showing the every-day regularity of these papers, 
the ignorance or willfulness of the captors in so treating 
these papers is manifest. But we are dealing with the 
argument of the Supreme Court, which finds these papers so 
suspicious as to condemn, and yet finds they were put in 
this shape to meet the scrutiny of the cruisers! The argu- 
ment is felo de se. 

II. The bills of lading and the manifest following, as it is 



THE SPRINGBOK CASE <)!»7 



made up from them, gave Spyer and Haywood, ami Mo>«s 
Brothers, as shippers, and not Be«jl)ie and S. Isaac, ('ain|)- 
bell & Co., and this is treated hy the Court as grave inattrr 
of "conceahnent," with a i)iiri)ose of i)roteeting the cargo. 

The Court find in the invoked i)apers from the "(Icrlrudc" 
and the "Stephen Hart" the inference that the disc losiirc of 
the names of Begbie and S. Isaac Cami)hell & ( "o., as owners, 
"would lead to the seizure of tlie ship in order lo the con- 
demnation of the cargo," and infer guilt from this conceal- 
ment. A few words will disi)ose of this somewhat thought- 
less suggestion. 

The point about Begbie is that the cruiser that should over- 
haul the "Springbok," seeing thai Begbie was an owner of 
cargo [who is assumed to be of ill-repute, with tin- cruiser, 
by reason of his kno^Mi connection with the "(iertruch'.'" a 
detected blockade-runner], would send in the "Springl»ok" 
on that ground of suspicion. 

But this is an anachrotiism of the most flagrant charact<T. 
The "Springbok" was overhauled just olV Nassau, on the 
3rd February, 18C3, and the "Gertruih-" <li<l not h.ad at 
Nassau for her blockade-running voyage, which was to 
expose her owner, Begbie, to the suspicion of the cruiser that 
was to overhaul the "Springbok" fill the SIh of April lS(i:J. 

The fact is, however, that Begbie's name was "disclosed" 
in the charter-party found among the shii)'s pap«-rs on her 

capture. 

So much for this ground of susi)icion an<l the <ianger to 
the administration of justice when siLsi)icion an. I hypothcMs 
are suffered to beguile the judgment of so great a court. 

But the Court find a similar motive in rcsjM'ct to the so- 
called ''concealmenV' of N. Isaac, (\imi>hell .(• Co., as owners 
of the cargo of the "Springbok" from th.-ir having be,-n con- 
cerned, it is said, with the case of the "Sti-pl'-n Hart.* 
which had in fact been seized and sent in ixforc the capture 
of the "Springbok." 



698 SPEECHES OF WILLIAM MAXWELL EVARTS 

This "concealment," which weighed so heavily with the 
Supreme Court against the cargo of the "Springbok," is 
readily disposed of, not as an anachronism, but as a mere 
oversight on the part of the Court. There was no con- 
cealment at all. The ship's papers, which came into the 
hands of the boarding officer (with the bills of lading and 
manifest which name Spyer and Haywood as shippers of the 
cargo), also included the letter of advice from Spyer & Hay- 
wood to the consignee at Nassau, enclosing the very bills of 
lading, showing that S. Isaac, Campbell & Co. were the 
owners of the cargo so shipped, and Spyer & Haywood were 
mere shipping agents. The letter is as follows: 

"Springbok." 

London, 8th Dec, 1862. 

15, Billiter-street. 

B. W. Hart, Esq., Nassau. 

Dear Sir: Under instructions from Messrs. S. Isaac, Campbell 
& Co., of Jermyn street, we inclose you bills of lading for goods 
shipped per "Springbok" consigned to you. 

Trusting to safe arrival of the ship, we are, dear sir, yours, 

obed'ly, 

Spyer & Haywood, 
Agents for Messrs. S. Isaac, Campbell & Co. 

(Riley vs. United States, 442, p. 100.) 

We have so completely disposed of these grounds oj sus- 
picion on which the Court laid so much stress as matters of 
fact, that we dismiss them with a single suggestion as to the 
poor support to the inference of the Court which they would 
have afforded had the facts been as the Court conceived and 
stated them. 

No neutral nation will ever tolerate the interception of a 
voyage, and sending in as prize, of a ship whose papers are 
regular and whose own adventure presents no ground for 
detention, upon the extraneous fact, that the owners of 
cargo have had connection with other adventures which 



THE SPRINGBOK CASE 699 



so 



have been good prize. The capturing officer who slioiild s 
deal with captures would be more likely to be cashiered 
than to earn prize money. 

III. The only further ground which the Supreme Court 
find for condemning the cargo of the "Springbok" is the 
conclusion that it was intended to be carried on, by trans- 
shipment in another vessel, to violate the blockade. The 
steps of the Court's reasoning are as follows: 

(1) It is apparent from the terms of consignment that the 
cargo was not sold to the consignee, but remained the i)rop- 
erty of the shippers, to be disposed of by the consignee ac- 
cording to their instructions. 

(2) The Court then, without disguise, and unthout any 
'pretense of evidence of any instructions to Joncard or transship, 
proceed to make up instructions, purely inferential, and 
wholly deduced from the "character of the cargo." 

The only "character" from which these hypothetical in- 
structions are evolved is the swords and bavonets, buttons 
and blankets. The dozen swords and dozen bavonets, bv 
some unexplained and inexplicable error of the court, are 
multiplied into "sixteen dozen words and ten dozen bay- 
onets," and thus are made out a consignment of "arms," im- 
porting a military supply, which infers destination. 'VUc two 
cases of buttons are magnified "into munitions of war," 
justifying a like inference of destination, and then the twenty 
bales of blankets, at best but ancipitis usus, are made out as 
looking to the same market. 

Now, under the evidence that Nassau was an entrepot 
where all such articles had a ready market, the moment the 
Court had decided that the voyage of the "Si)ringb()k " ended 
at Nassau, it is manifest that, in the nature of tilings, no 
inference could be justified, from the character oj the articles, 
either that they were to be sold in Nassau or sent forward. 
Yet the whole reasoning of the Courl, in its invention of in- 
structions to transship, whicli arc to cond-inn the cargo. 



700 SPEECHES OF WILLIAM MAXWELL EVARTS 

makes out the instructions from the cargo itself — that is to 
say, the only voyage for which the cargo was ever actually 
laden, having its end at Nassau, and a further voyage in- 
tended being essential to be proved before the cargo can be 
condemned, the Court allows the cargo itselj to prove a further 
voyage, as a necessary inference from the contraband features 
of, say, one per cent, of its bulk or value! 

It is vain to make two stages, for the reasoning, viz. : that 
instructions to transship would condemn, if proved, and the 
character of the cargo proves such instructions. The only 
effect or suspicion is the cargo itself, and, reduced to its real 
meaning, the condemnation is based, not upon any instruc- 
tions for any voyage proved, nor on any voyage proved, but 
on the contraband nature of the cargo importing, de jure, a 
hostile destination. Reduced to its true elements, in face of 
the market of Nassau, made for and swallowing cargo after 
cargo of goods, to be again sold for the market of the rebel 
States, the reasoning of the Supreme Court is wholly un- 
tenable. 

(3) But from its inference against the one per cent, of the 
cargo, which it selects as importing a hostile ultimate des- 
tination for it, the Court proceeds, per saltum, to the con- 
clusion that the whole cargo was going to the same destina- 
tion. 

Against reasoning like this, no obstacle can be successfully 
opposed. It rests upon nothing, in nature of evidence, and 
demands condemnation upon the force of suspicion alone. 

It says the proved voyage ended at Nassau, and the ship 
and cargo were there to part; a further voyage by another 
ship must be found against the owners of the cargo or it can- 
not be condemned; none such is proved, but we think the 
cargo must have expected a further voyage and, for that reason, 
we condemn it on its face. 

(4) The Court from its conclusions thus reached: (1) 
that the cargo was to go forward to a market in the rebel 



THE SPRINGBOK CASE 701 

States, and (2) that it was 7wt to go by the "Sjjrin^'l.ok" - 
reasons out that "the phin must have been to snul it forwanl 
by transshipment." This, as an abstract proposition, stvins 
safe enough reasoning, that is if it iras going aiui was nut 
going in the "Springbok," it must have been going in an- 
other vessel! 

But as evidence or grounds for tliis demonstration, it will 
be perceived, the Court have added notliing to what apprars 
on the face of the cargo in its contraband ftalurcs. That is 
to say, contraband nature and hostile destination, as inatttT 
of fact, being boih necessary to cond<Mnn, the Court infers 
the latter from the former. AVhat is this but to condrnui. 
on the contraband nature alone, not only when the hostile 
destination is not proved, its vehicle not snggcstcd. and the 
port not surmised, but on a concedetl destination of the 
intercepted vessel being neutral. 

(5) Conscious that this reasoning has gained no .sU|)port 
or evidence beyond the nature of the cargo (i.e., of one p«r 
cent, of the cargo), the Court looks for tlic clcmcnt.s of 
probability in the moral evidence, furnished by the owners of 
this cargo having had connection wifli i)revious enter- 
prises to break the blockade. 

To be sure, the /ad in regard to Begbie (and to the voyage 
of the "Gertrude" which furnishes this moral evidence 
against him, for his share), is unluckily made to work tlii> 
imputation, not upon a voyage of the -(lertrnde" bcfun- but 
after, the "Springbok's," as we have already pointe.l ..ut. 
Little as we think of an argument to infer a mcdiinhd illegal 
adventure for the cargo of the "Springbok." be.an.se iIm- 
o\\Tiers of such cargo had bifnrr, in another a«lv.-ntnre. 
planned a violation of the blockade in wlii.li ti.ey hid Inm 
detected, we confess its value, comi.ared withanargnni.nl 
of present guilt in the -SpringlM.k's" a.lventnr.-. iK.-auM' n 
subsequently planned and perp.-trated violation of bl.H-kade 
had been traced to the owners of the "Springbok . cur^o. 



702 SPEECHES OF WILLIAM MAXWELL EVARTS 

But as the Court find this moral evidence against the cargo 
of the "Springbok," also, because S. Isaac, Campbell & Co. 
had been concerned in the case of the "Stephen Hart's" 
voyage to a blockaded port, we will consider how this propo- 
sition stands as matter of prize law, to which neutral nations 
are bound to submit. 

The proposition is this: S. Isaac, Campbell & Co. were 
connected with the voyage of the "Stephen Hart," which 
was interrupted on her voyage and made good prize for in- 
tent to violate the blockade: therefore, S. Isaac, Campbell & 
Co.'s interest in the "Springbok's" cargo is good prize of 
war, as contaminated with the guilt of the "Stephen Hart's" 
adventure. It is plain that, as a substantive ground of fix- 
ing a guilty destination in the "Springbok's" cargo, this 
reasoning violates every principle of the administration of 
justice. It is using moral evidence of former participation in 
a proved independent voyage, to prove the very corpus 
delicti of the voyage in question itself, instead of employing 
it to prove the intent which makes criminal the corpus delicti, 
when that has been proved, as it must always be, as an 
actual occurrence or transaction. 

(6) But the Court recoils, at last, from this groping in the 
dark and in the future — from this phantom ship, built and 
rigged from keel to top-mast from moral reasoning, and, on 
the German method, evolved from the consciousness of the 
reasoner — and demands some fact in which this probable 
future voyage may find a vehicle and an opportunity. It 
finally supplements these "insufficient grounds for a satis- 
factory conclusion," by the fact "of the presence of the 
'Gertrude' in the harbor of Nassau . . . about the 
time when the arrival of the 'Springbok' was expected 
there"; and from this /ad the conclusion which condemns 
the cargo of the "Springbok" is finally deduced, as follows: 
"It seems to us extremely probable that she had been sent to 
Nassau to await the arrival of the 'Springbok,' and to carry 



THE SPRINGBOK CASE 703 

her cargo to a belligerent and blockaded port, and that she 
did not so carry it only because the voyage icas intercepted by 
the capture." 

Now, there is no pretence that the ship's papers, the cargo, 
or the proofs in preparatorio, in the case of the "Si)ringi)()k,'* 
connect her, or her voyage, or her cargo, or its destination 
with the steamer "Gertrude." By invocation, at the hear- 
ing, the captors brought in from the case of the "Gertrude," 
which was captured with a full cargo, laden April 8, at 
Nassau — long after the capture of the "Springbok" — all the 
papers they desired, and it is the ownershi]) of the "Ger- 
trude" by Begbie, and her supposed presence at Nassau to 
await the arrival of the "Springbok," that the Court find 
damnatory of the cargo of the "Springbok," 

Now, the fact utterh' fails. The earliest date at which 
these papers from the case of the "Gertrude" show her at 
Nassau is April 8, 1863. The "Springbok" was captured 
within a day's sail of Nassau on the 3d February, 1803, and 
on that day the "Gertrude" was quietly lying at Queens- 
town in Ireland, where she had just arrived, and whence she 
had no voyage commenced, or for which she was loaded. 

The grave error of fact, out of which the Court made out a 
vehicle and voyage to carry on the cargo of the "Springbok" 
to a hostile destination (and without which the cargo could 
not have been condemned), when corrected, overthrows the 
whole damnatory hypothesis on which the confiscation is 
worked out, in the reasons and grounds given by the Court. 

This is but one more instance of the very serious conse- 
quences of allowing moral reasoning anti extraneous, frag- 
mentary, and wholly irrelevant papers, of res inter alias, to 
frame not merely the guilty intent of a j)rovrd voyage in 
which a ship has been intercepted, but tiie very corpus 
delicti, the very voyage itself, which had no exisleiicc or liope 
of existence, except in misconceived fact and piir(l\ fanciful 
reasoning. 



704 SPEECHES OF WILLIAM MAXWELL EVARTS 

(7) But all this seems but an insecure footing for the 
Court to rest their judgment upon, and they seek some sup- 
port, however feeble, that appears at least to be chargeable 
and responsible as the action of the claimants. And this 
confession or conviction is to come from, what the Court 
call, "the very remarkable fact," that the claimants never 
applied for leave to take further proof. The principles of 
prize law prohibit this recourse to proof de hors the ship and 
her crew at the request of a party. It is to proceed from the 
Court's own demand or it does not come at all. 

At what stage should any such application have been 
made by these claimants? 

If a claimant should make such a request before the first 
hearing, before the Court have found a difficulty, such an 
application would be considered, and in the prize jurisdic- 
tion is well understood to be, a concession that on the primary 
proofs condemnation must be expected to pass. But the 
whole case shows that these claimants never had reason to 
imagine that a decree could be made by any prize court on 
invoked proof in favor of the captors, without giving opportunity 
for further proof to the claimants. Besides, on the facts of 
the case, the claimants could not foresee a condemnation on 
the ground that this "Springbok" itself was to run the block- 
ade. It cannot be imputed to them as a fault not to have 
foreseen a judgment on grounds which the Supreme Court has 
wholly repudiated. 

Should they have applied after this decree of the district 
court made on the grounds that it disclosed? They certainly 
were not wrong in their reliance on reversing the decree of 
the district court, as the result has shown. No further 
proofs were necessary to refute the imputation of the "Spring- 
bok's " voyage being itself intended to penetrate the blockade 
and this was the sole ground of condemnation. 

Should they have applied to the Supreme Court for leave 
to take further proofs? 



THE SPRINGBOK CASE 705 

We have quoted above from the treatise of Jiid^j.- Story, 
which instructed the profession in the true doctriiu' of furtlur 
proof, as emanating from the spontaneous movciiu'ut of tin- 
Court to that end. Besides the doctrine thus laid down. 
Judge Story gave the practice of the Supreme Court as rstah 
Hshed and unflinching, never departed from in a .siii^dr in 
stance, to deny any apphcation for furllu-r proof "until lli«- 
cause had been first heard on the original cvidfuce" (tU 
supra). 

We have exliausted every .stage or sitmition in flic progn-ss 
of the cause to which this strange reproach of I he SupniiM- 
Court is applicable. 

The Supreme Court itself, in its judgment, convicted tin- 
district court (1) of error in the substance and essence of it.s 
sentence, and (2) of irregularity in allowing the capt<trs to 
invoke proof outside of the captured vessil. It then pro- 
ceeded to expose the new grounil of condemnation, vi/.: tin- 
hypothesis of continuous voyage of cargo by a new bottom, 
to support it on suspicions founded on the irregular further 
proofs allowed the captors, to confirm it by j)robable realms, 
quite extraneous to the province of the primary pro<»f. ami 
necessarily to be met by further proof from the claiiuanl-* if 
the Court thought them weighty enough nnex|>laine(l to < (.n- 
demn, and yet the Supreme Court condenmed without open- 
ing the case for further proof. 77/ /.v is, inder.l. "a very re- 
markable fact," and we shall have occasion to observe upon 

it hereafter. 

(8) The Supreme Court .seems to think it a fault thai tin- 
claims were sworn to by the proctor and agent ..f tins,- ab>.nt 
parties, and not by the parties personally. 

This imputation requires but a moment's all«ntion. I h< 
claims were sworn to according to the ruh-s. which are bnl a 
snare, if the meaning is that the acceptance of the alh.w.-d 
convenience is to condenm tin- properly on thai gronml. 

No doubt a prize court may s.m- thai il.s doubt.-,, winch 



47 



706 SPEECHES OF WILLIAM MAXWELL EVARTS 

might be resolved by a personal test oath, are not equally 
met by an agent's verification, however regular. In such 
case the Court always suggests the difficulty, and awaits from 
the claimant this form of further proof, and if it be declined, 
feels at liberty iheii to make a distinction in the weight due 
to the one or the other. 

The legal theory of ''Continuous voyage,"" considered and de- 
fined. 

The doctrine of "continuous voyage," as it has been in- 
terpreted and applied by the Supreme Court in cases previous 
to that of the "Springbok," may be stated thus: A voyage 
which, at its start from the neutral port of lading for the 
carriage of contraband to the belligerent's country (or inno- 
cent cargo to a blockaded port of the enemy's country) in- 
cludes in its project and design this destined deposit of its 
lading in the enemy's ports, is open to belligerent intercep- 
tion, from the start, although it should appear that the ship 
and cargo were actually seeking a neutral port when inter- 
cepted, provided it should, also, appear that from the neutral 
port the cargo was intended to be, as a part of the original and 
planned adventure, carried to the enemy's port. And, this 
latter element of the completion of the transit from the first 
neutral port of departure to the enemy's port being embraced 
in the original guilty scheme, the fact that the carriage from 
the intermediate neutral port was to be by transshipment, 
and taken up by a new bottom, does not purge the adventure 
of its guilt, or protect the first stage of the voyage from inter- 
ception, and the ship and cargo from condemnation. The 
doctrine is as extremely stated in the head-note of "The 
Bermuda," 3 Wallace, 515, as anywhere: 

A voyage from a neutral to a belligerent port is one and tkb same 
voyage, whether the destination be ulterior or direct and whether 
without the interposition of one or more intermediate ports; and 
whether to be performed by one vessel or several employed in the 
same transaction and in the accomplishment of the same purpose. 



THE SPRINGBOK CASE 707 

The recognized doctrine, of whicli we make no <(»mi>laint. 
that vessels carrying cargo "lo helligcrenl |)orls uiuUr 
blockade are liable to seizure and coiKU-nination from flic 
commencement to the end of the voyage," (TIm- Htrniinhi. 
ut supra), is thus thought to be nia(h' appHcaljU- to a proji-ct 
of violation of blockade, at any stage of its execution, al- 
though such project included intermediale ports and trans- 
shipment and carriage by new l)ottonis. 

The condition of proof , and the interpretation of it. wliicli. 
in this extreme case of the "Bermuda," was tliouglit by tlu' 
court to justify condenmation, nmst not be overlookt'd and 
should be carefully weighed. It really gives tlie tiua.surc (»f 
the doctrine of the Court, laid down in thai «'\trcnie cas*' 
on the subject of "continuous voyage." 

The Court concludes: 

What has already been adduced of the evi<lcne<«, satiyfie.s us 
completely that the original desti7iation of the "' lienuuda" ira,s lo a 
blockaded port; or if otherwise, to an interviediatc port, with itilrni 
to send forward the cargo by transshipment into a re.f.sel pmrided fm 
the completion of the voyage. 

The Court found sufficient evidence that cithrr thr 
"Bermuda" herself or her tender, the "Herald." was to 
complete the voyage and penetrate the blockade, and condemned 
both ship and cargo. 

With the doctrine of continuous voyage, as thus limite<l 
and defined (and made to depend for its application on a 
proved voyage reaching from a neutral to a belligerent's port, 
by ascertained vessels comi)leting the project in a scheme 
which is intercepted only by the cai)lure). tlure is n.»lhing in 
the case of the "Springbok" that involves us in any neces-sary 
controversy. The important (|uesti(.n. for neutrals, is. 
w^hether trade between neutral ports l<. uhich the .'letmil 
voyage intercepted is really (confined, is to be made guilty, 
by surmise, conjectur(>, or moral evidenre. and that. even. 
not of the further carriage and further carrier, but only of u 



708 SPEECHES OF WILLIAM MAXWELL EVARTS 

probability that such supplementary further carriage, and 
some sup])lenientary carrier may or must have been included 
in the original scheme of the commercial adventure. 

If a belligerent prize court can thus be master of a neutral 
commerce by this fiction of continuous voyage for the case 
of all trade between neutral ports, which has its stimulus 
from, the state of war, why, then we have a paper blockade 
of the neutral ports in question, and their commerce is at the 
mercy of the belligerent. 

A little attention to the course of the prize jurisdiction on 
this doctrine of continuous voyage, will show how carefully 
the province of probable reasoning has been confined to con- 
victing of intent, when the corpus delicti — the voyage to the 
enemy port — was proved with the same definiteness of 
vehicle, and port, and process of execution, as, confessedly, 
is essential when the voyage is direct and simple. 

The doctrine of continuous voyage had its origin and its 
principal illustration in the prize courts in the trade between 
the Colonies and the parent State during the European wars 
of the last century and the early part of the present. The 
question, as it presented itself, was of this kind. Trade be- 
tween European States and their transmarine colonies, in 
time of peace, was not open to the navigation of other nations. 
When, under the stress of war, any one of these States 
threw open this interdicted colonial trade to neutrals, the 
hostile Power refused to recognize this as lawful neutral com- 
merce. On the contrary, it was treated as succor to the 
enemy, in relief of its trade, which the war had strangled, 
and the belligerent captured and condemned the ships and 
cargoes of the neutral as if an enemy; but, as trade between 
the colonies and the neutral, and between the neutral and the 
European States, was incontestably open to the neutral, a 
trade was attempted of colorable importation from Cuba, 
for instance, to Boston, and exportation from Boston to Spain, 
and so of return cargoes through the interposition of a neu- 



THE SPHTXr.HOK CASE 7tii> 

tral port. This sclioiiio was (Icnoiincod, and lliis comnnn.i- 
attacked by the belhgereiit. Tlic (lueslion for Ihr |)ri/.f 
courts M^as, whether the iin])orlatioii into, and tlic exporta- 
tion from, the neutral ])ort, were really transactions of the 
neutral's own, and, of course, legitimate coininerce, or wiielhcr 
it was really a trade between the colony aiid the parent 
State, and the interposition of the neutral port was only 
colorable. 

An examination of the cases under this head «)f i)ri/c law 
will show two things which mark a firm and just observation 
of the limits between the actual proof of the corpus dtlicti, 
and the province of moral reasoning in deciding on tlie intent 
of the transaction. 

The captures were made in the voyage /ro;/i the neutral port 
to the enemy port, and then, the cargo showing its origin as of 
the proscribed commerce, the comi)lete circuit of transporta- 
tion, as matter of fact, of colonial i^roduce to tiie parent 
State (or vice versa) — that is, the corpus delicti was incon- 
testable. But the prize court never assumed upon intir- 
ception of the voyage to the neutral j)ort, to invent or sur- 
mise, out of the state of trade and its profits and temptations, 
the further voyage /ro??i the neutral port which was nrc.vs- 
sary to the corpus delicti. 

The second point to which we seek attention is, that when, 
on this state of proofs of the actual circuit of the j)rohibite»l 
trade, the prize court found any basis for suspicion that tin- 
apparent importation and exportation to and from the n«n- 
tral port was colorable and nol real, the court did not <on- 
denm, but always opened tlie case io llir claimants for 
further 7?roqf— that is to say, there being before Ih.- court an 
actual voyage which is guilty or innocent aecording to the 
sincerity of intent in the transaction, it will not mndimn uidess 
the neutral fails to meet an op|)ortunily for making «-iear 
what, in its nature, it nuist be in his power to make clear. 

But observe, how much stronger was the position (.f the 



710 SPEECHES OF WILLIAM MAXWELL EVARTS 

neutral in the case of the "Springbok," as it stood before the 
prize court. Instead of the voyage before the Court being 
guilty or innocent upon a question of intent to be explored, it 
was absolutely innocent, unless and until an additional voyage 
should come into play to make out the corpus delicti; and 
then, but not till then, the neutral might fairly be called 
upon for further proofs to exculpate or inculpate him in such 
intent, ab initio, as would support condemnation. 

See the important cases of: The Polly, 1 Rob., 361; 
TheMaria, 5i6., 635; The William, ^6., 385; The Thomysis 
Edw. Adm. Rep., 17. 

How far neutrals will finally acquiesce in this doctrine of 
"continuous voyage" in its threat to the freedom of their 
commerce, it is not for us to predict. But we may safely 
suggest to the wisdom and justice of this International 
Tribunal, that the limits of the prize jurisdiction must be 
strictly confined to judging, on probable reasoning, of the 
culpability, under the law of nations, of the property sub- 
jected to its sentence, and not allowed to raise the supposed 
culpable voyage itself out of the clearly innocent neutral 
voyage, upon surmise and conjecture. 

We are apt to think of these questions of continuous 
voyage as chiefly interesting to Great Britain, with her 
transmarine possessions, and not to a country like the United 
States or Italv, without them. But the LTnited States, with 
its immense sea-coasts on the Atlantic and the Pacific, and 
Italy, in its position half-way between the Levant and the 
Atlantic, both occupy positions of the greatest interest 
on this question. Is the whole coasting- trade in dry goods 
and breadstuff s between northern and southern ports, and 
in cotton between New Orleans, Savannah, and Charleston 
and New York to be exposed to French or British cruisers in 
a war between those countries, or between either of them 
and Mexico or South America, because these domestic voy- 
ages between neutral ports of this country are to be supple- 



THE SPRINGBOK CASE 711 

menied by future voyages of unknown vessels to nnkni>\vii 
belligerent ports? Are these cruisers to visit ;in«i >tii<l in, 
across the Atlantic, for adjudicatitm. a cottDn-ladrn sliip, 
admitted to be bound from New Orleans to New ^ <)rk. be- 
cause New^ York merchants are sending slii|)l()ad aftrr ship- 
load of cotton to France or to England and it is prohahle tin- 
intercepted cargo might have an ulterior destination? 

Is Italy, in w^ars between France and England, or of ritlMT 
or both of them with Russia, on some Eastern or Tiirkisli 
question, to find its neutral trade molested becausr what 
comes to it from the Levant may seek a new voyage throngh 
the Straits of Gibraltar, and what comes to it through tin- 
Straits of Gibraltar may have an ulterior destination. b\- a 
new^ voyage, to the Bosphorus, the lilack Sea. the (Jrcck 
"entrepot" of Syria, or the Suez Canal? 

We must think no more important question than this of 
"continuous voyages," as illustrated by the case of thr |)ri/f 
condemnation of the cargo of the "Springbok," can touch 
either the interests or the pride of neutral maritime Stal«N. 

The grave errors in the condemnation of the ranjo uj the 
''SpringhoW and in the grounds and principles of that con- 
demnation, in the prize court, which entitle the mcnwriali.'<ls to 
restitution and indemnity from the United States at the hn.nf. .,f 
this International Tribunal. 

If w^e have been at all successful \u impressing the Mixed 
Commission with the views of the law and estimate <.f the 
facts which entered into this final sentence of comlemnatM.ii. 
as w^e understand and have exposed them, our further duly 
in this argument seems but formal. 

That dutv, we conceive, will be best perf<.rm.-.l by iUWu- 
ing and concisely stating the points wherein the judgn.enl 
of the Supreme Court fails to c<.nf<.rm t.. the Uules of the 
law of nations governing the subj«'<t. 



712 SPEECHES OF WILLIAM MAXWELL EVARTS 

I. The original capture was wholly unjustifiable. The 
visitation and search disclosed nothing which rendered the 
intercepted voyage of the "Springbok" amenable to further 
molestation. If the meagreness of the infoniiation afforded 
by the ship's papers, as to the character of the contents of 
the packages of which it was made up, warranted any further 
action of the visiting cruiser, such further action could have 
gone only to a search of the packages of the cargo them- 
selves for evidence of conviction or just suspicion. Upon 
the result of such search it would have depended, in any 
case, whether the cruiser would have been justified in send- 
ing in the prize. But no such search was made, and no 
extraneous grounds of doubt or surmise, of course, were 
accessible to inculpate the voyage. 

Now, upon the construction which the visiting cruiser 
should have put upon the voyage which it assumed to inter- 
cept, the observations of the Supreme Court exclude any 
doubt : 

Her papers were regular, and they all showed that the voyage on 
which she was captured was from London to Nassau, both neutral 
ports within the definitions of neutrality furnished by the interna- 
tional law. The papers, too, were all genuine, and there was no 
concealment of them and no spoliation. Her owners were neu- 
trals, and do not appear to have had any interest in the cargo, 
and there is no sufiicient proof that they had any knowledge of its 
alleged unlawful destination. The preparatory examinations do 
not contradict, but rather sustain the papers. 5 Wall., 21 ut supra. 

Now, there is no pretence that the examination of the 
voyage made by the cruiser disclosed any doubt of the 
neutral ownership of the cargo, or that any such doubt was 
entertained by the captors, or has been intimated from any 
quarter at any stage of this case. There is no pretence that 
there was indication or suspicion of contraband in the cargo 
that affected the cruiser in sending her in. If every box 
and bale had been opened, captors of the least experience 



THE SPRINT.nOK CASE 7l:{ 

in prize would have seen that tlie i)ivseiut' i»f tlu- trivial 
proportion of contraband on hoard was a moral dfinoiist ra- 
tion that the large and vahiahlc cargc (.f dry gtMxis and 
groceries had not a destination to a hostile port, or tli. 
contraband, of no importance lor tht- projits of tin* ^'rntrai 
adventure, would not have been snllVred •,Maluiloiisl\ to 
expose the enterprise to ignorant or interested suspiei(»n. 
But, no matter what the cargo of the voyage bet wet-n nentral 
ports, the voyage is free froni molestation. 

Certainly, none of the confirmations of donbt to the preju- 
dice of the cargo which the prize court drew, by invm-ation. 
from extraneous sources, influenced at the time, or can now 
justify, the captors in sending in this prize. Manifestly it 
will not do to justify a cruiser in .sending in a neutral ship 
and cargo, taken on a neutral voyage, on the sj)eculatioji 
that it may be the cargo was to go forward, and if so. pirJuips 
it may be provable. It is difficult to understand, on the 
essential principles of prize law, on what imaginable justi- 
fication the "Springbok" was sent in. 

Mr. Seward communicated to Lord Lyons, who askt-d for 
an explanation, the captors' rea.son, as assignecl in the re|)orl 
to the Navy Department, as follows: It was "because sin- 
had no proper manifest, and nothing to show the eharaeter" 
of her cargo, which the captain said he was ignorant «»f. 
But this rea.son, as we have before insisted, if well fomuled. 
only indicated and justified a search into the eharaet«T of 
her cargo, which after all, however com|)osed. was e(pially 
lawful between neutral j)orts. 

The mystery of the capture, however, has been pnbli«l\ 
explained in her having been denounced by agents of the 
American Government in England, in advatK*- of her sailing, 
in a "black list" of vessels iiitendecl to run tin* bl«Mkade. 
This was a mere blunder, by which this deej) sdillun vess.l 
was grouped with a list of shallow draft .sliniiifr.s. 

But this ground of capture of neutral commerce lus a justi- 



714 SPEECHES OF WILLIAM MAXWELL EVARTS 

fication to a cruiser could never be tolerated, and the Ameri- 
can Government gave instructions to their cruisers that 
should preclude it thereafter. The details of this matter 
are given in Appendix A to this argument. 

The whole history of this capture shows that it was in 
itself irregular and unjustifiable, that it was prompted by 
irresponsible suspicions which had no foundation, and to 
which the vessel, its lading, its papers, and its destination, 
neither gave rise nor aliment. 

It is a marked case of speculative seizure, detention, and 
diversion of the voyage, not upon indications which the 
visit and search at sea disclosed, but in entire absence 
of such indications. The seizure was, apparently made on 
the chance that independent, extraneous and argumentative 
grounds of suspicion might possibly warrant it. 

On the ground, then, that the capture violated the right 
of the neutral, and exceeded the privilege of the belligerent, 
the restitution and indemnity demanded should be accorded. 

II. The trial in the prize court violated the essential 
principles of the prize jurisdiction as established between 
belligerents and neutrals and in which the latter find the 
limits of their exposure and submission. The only theory 
upon which the method of a prize court in condemning prop- 
erty sent in for adjudication can be justified is that the 
proof furnished by the ship's papers, the cargo, and the 
depositions of all on board are, so to speak, the ship's own 
story of the voyage, told by itself, and it is not unfair to 
condemn it thus out of its own mouth. It is for this reason 
that Judge Story has so emphatically said that this confine- 
ment of the proofs rigidly within these limits, "is not a 
mere matter of practice or form; it is of the very essence of 
the administration of prize law." Not less thorough and 
comprehensive is the declaration of the eminent English 
authorities we have quoted: "In this method, by courts of 
admiralty acting according to the law of nations and par- 



THE SPRINGBOK CASE 71 



ticular treaties, all captures at .sea hare immrnwriall!/ \tvt-u 
judged of in every country in Kuro])e. Any oilier nu'th(nl 
of trial would be manifestly unjust, ah.suni, and iniiirarti- 
cable." (Sir Williani Seott, etc., /// supra.) 

Now, at the original hearing in i)rize the advocate for tlu- 
captors (not the United States attorney representing llic 
Government), invoked papers from the case of tlic **St('plM'n 
Hart" to form part of primary proofs to condemn the 
"Springbok" and her cargo. Notwithstan<hng the strmu- 
ous objections of the claimant's advocate this i)roof was 
received, and it entered into the sentence of condenuialion. 
which the court proceeded to, unthout giriucj the claimants an 
opportunity to give on their part further proof. 

Upon this unprecedented proceeding, whicli the Supn'ine 
Court condemns as irregular and not "in acconhmce with 
the rules of proceeding in prize," the court of last resort, 
nevertheless, does not hesitate to draw from tliis extran.oiH 
proof its suspicions and its damnatory conclusions. 

In truth, it must be admitted, as it seems to us, lliat thr 
Supreme Court entirely mi.ssed the ])()int of tlie i)rin(ipli-s 
of prize procedure to which we have calird attention, 
treated it as an irregularity mform, from which no harm liad 
come, and proceeded to condemn the i)roperty without open- 
ing to the claimants an opportunity for furtlier i)roofs. 

This trial and condemnation, then, were unprece<h-ntr.l 
and subversive of the principk's of pri/.e jurisdiction. an<l 
the memorialists have been deprived of tlieir pn.perty by a 
method not known to the law of nations and not a.s.seiitnl 
to bv neutral powers. T^i)on this gronn<i Ihr nu-n.onah.st.s 
are entitled to restitution and in.Knmity from th.- I n.tr.l 

St ates • 

III The passing of con.h-nmat ion without giving an oppor- 

tunitv for further i)roof was a manif.-st injustu-e. and the 
proofs now presented to th<. Mixed Conunission show the 
completeness of the/«c/.s- of the case wliich th. nu-n.onal.st.s 



716 SPEECHES OF WILLIAM MAXWELL EVARTS 

have now proved to refute the hypothesis and allay the sus- 
picions upon which the condemnations passed. 

(a) The mere fact that the captors had been allowed at 
the first hearing' to introduce extraneous or further proofs 
(an unheard of proceeding) made it necessary, on every prin- 
ciple of prize law, that the difficulties thus raised should 
carry the conclusion of the court, at such hearing, no further 
than the demand of further proof, if it was not ready to ac- 
quit. 

(b) But, most assuredly, when the ground of condemna- 
tion was not on the voyage intercepted, but upon conclu- 
sions of the probability of a future but unascertained voyage 
(being a conjectured guilty supplement to an innocent 
voyage) the nature of the ground of difficulty precluded a 
condemnation unheard as to the probable and conjectural 
guilt, which was found, if at all, de hors the primary proof 
against the claimants, who had never been admitted, on 
their part, to proofs outside the primary proofs. (Story on 
Captures, p. 25, ut supra.) 

As a matter of most elemental reason and most universal 
practice in prize courts, further proofs should have been 
allowed the claimants. The absolute condemnation was 
contrary to the right and system of the prize jurisdiction. 
On this ground the memorialists are entitled to restitution 
and indemnity. 

IV. The precise form in which the presence of the trivial 
amount of contraband (so regarded by the Court) on board 
the "Springbok" operated in effecting the condemnation 
of the whole cargo is somewhat obscure. Apparently the 
substantial consequence given to this portion of the cargo 
by the Supreme Court, in their judgment, was as evidence 
that that part of the cargo was not to stop permanently in 
Nassau, but was meant for an ulterior market. Instead, 
however, as would have been the legitimate reasoning on 
the subject, of condemning the contraband alone upon this 



THE SPRIXGKOK CASE 717 

evidence of its destination, it is made to inculjiatr tin- wlmlf 
cargo, not on the ground of eontral)and coiitaiiiiiiatitui (as 
belonging to the same owners), hut Ix-caus*- of iiifirnilitil 
destination for the same market as the contrahand, and of 
such destination involving a i)uri)ose of hreakiug thr hl<H-k- 
ade, as the whole coast was under tlie l)lo<kade. Hut if tin- 
condemnation rests upon the carriage of et)nlral)amd. and 
not upon the intended breach of the bhxkade. it was c-ontrary 
to sound principles to confiscate a great and vahiabli- uuiss 
of innocent cargo from the presence of tlie do/.eu swords and 
bavonets and those militarv buttons. Kveu thesi- trivial 
quantities should not themselves have bcni confiscated, 
and certainly they should not have cond<Mnned the mass of 
inoffensive lading. The eminent (ierman jurist. Dr. Liid- 
wig Gessner, says: 

It is wrong to seize contral)and goods in a neutral vessel wlirn 
they are in such small quantities that their inolfensive elinnirter 
is thereby established. The bo7ja Jides is a (juestion to Ik- .ieter- 
mined by all the circumstances of the case. ain(.n^ which the 
qnantity is a very material ingredient. (Droit des Neuln-s .sur 
Mer, p. 122; See 3 Phill., 358; 5 Rob., 3.34.) 

V. But for the reasons which we have h«Tctof«»n- staled, 
in testing and weighing the imi)ortance of the grouiuls given 
by the Supreme Court for this condemnation, its senl.-m-e 
wholly fails of support in law or in fact. The con<lcinMalion 
proceeded, no doubt, ui)ou the hyi)olhesis of a bn'a<-li «»f 
blockade by a continuous voyage planned for tin- cargo from 
the start, commenced by lading on ix.ard iIm- "Springbok.' 
and in progress towards consummation when intenvpled. ^^ 

(a) Treating, as we must, the .hxtrine of the '•Hernuida" 
as expressing the law of '"continuons v<.yag.-" a.s held by 
the Supreme Court, we fin<l n..l a parti.le ..f evulem-*- to 
sustain the condemnation «»f H"- "SprmglK.k ^ 
within that doctrine. Thai doctrine requires, an ,M..i..ium. 
by the proofs, of the vehicle and v.»yag<-. whether by mean* 



718 SPEECHES OF WILLIAM MAXWELL EVARTS 

of a new bottom or not, which was to consummate the breach 
of blockade. In the case of the "Bermuda," the Court 
found, on the proofs, such a vehicle and such a voyage. 

In the case of the "Springbok," no such vehicle and no 
such voyage are exhibited upon the proofs. The service 
of the "Gertrude" for the continuance of the carriage of 
this cargo, the only project the court entertained as probable, 
signally failed. The "Gertrude" was on the other side of 
the Atlantic, and her blockade running was independent of, 
and subsequent to, the Springbok's commerce. 

Thus, upon the law of the "Bermuda," the condemnation 
of the "Springbok's" cargo was without any support of 
evidence or fact. 

(b) It cannot, indeed, be doubted that the doctrines upon 
which the Supreme Court based its condemnation of the 
cargo of the "Springbok," while they acquitted the ship and 
held its voyage wholly lawful, are far looser and more exten- 
sive than those of the "Bermuda," or any previous case. 

This doctrine of "continuous voyage," as applied in the 
case of the "Springbok," which permits interception during 
the innocent voyage between the neutral ports, and con- 
demnation of cargo only, upon destination to ultimate market 
inferred from the demand for such cargo in the enemy ports, 
scatters to the wind all the limitations on belligerent inter- 
ference with neutral trade which are confessedly to be ob- 
served when the voyages are direct between the enemy and 
the neutral port; it breaks down all the safeguards of the 
prize procedure, widens the province of circumstantial or 
moral evidence so as to embrace the proof of the corpus 
delicti, and, in fact, exposes neutral trade between neutral 
ports, which the war develops injuriously to belligerent 
interests, to suppression as itself unlawful. 

No doubt belligerents chafe under the opportunities which 
purely neutral trade between domestic neutral ports may 
furnish to advance the carriage of supplies (contraband or 



THE SPRINGBOK CASE 710 

intended for breacli of hlockailc) to tlic outjxKsl.s of tlir 
neutral nation, and thus shorten tlu' transit of siipphrs 
which is exposed, by the hnv of nations, to the hiwful iiitf-r 
ference of belHgerent power. No doubt, in thr Civil War 
in America, this development of neutral trade bctwcni (irrat 
Britain and her transnuirine possessions, mar to flu- bl<Mk.- 
aded rebel coast, was seriously detrimental to the brllimTfiit 
interests of the United States. 

No doubt, the cruisers and the ])rize courts wen- justifir*! 
in vigilance and activity to prevent the voyages between 
neutral and belligerent ports oi)en to eondenmation by tin- 
law of nations, from being dissembled under the coNcr ami 
guise of neutral destination up to the line of neutral inter 
course, and there run into the blockaded ports. 

But, on the other hand, it is equally (-l<*ar that theerui>- 
ers and the prize courts are not to be permitted by neutral 
nations to do indirectly what would be just ^touikI for 
reseiitment and even war, if done directly. The peae»- of 
the world is not to be secured in that way. 

Upon the whole, then, it is respectfully >ubniitte<i. that 
the case of the "Springl)ok's" cargo, if sufTi-n-d t.) reniain 
unreversed as a rule of the law of nations, gives to b«-lhp-r- 
ents a power which, heretofore, they have never diired In 
claim, and subjugates the conunerce of luutral nafi.)n> t<. 
belligerent exigencies to an extent never b.fotv >ubniittrd 
to, an extent not tolerable either to llM-ir interests or their 

pride. 

The rule thus e.stabli.shed gives to the .-misers and ll.e 
prize courts a wider and more uncontrolled sweep of niter- 
ference with commerce between the proscribed neutnd pt.rt^ 
than they possess in respect to eomnieree b.-tween neutral 
and belligerent ports. 

A paper blockad.- of lh<- '.••"Ira! ports, not toh-rabh- I., 
wards the enemy's ports, capture and sending n. for adjud. 
cation vessels that cannot by possibility <-.mv.. t ..r ae.,uil 



720 SPEECHES OF WILLIAM MAXWELL EVARTS 

themselves on the primary proofs — for they cover only the 
present and innocent voyage — condemnation upon intent 
of future voyage, not commenced, necessarily upon extran- 
eous proofs, if at all — all these strange consequences follow 
from this new doctrine of belligerent right and neutral sub- 
serviency. 

It is, in nature and substance, an enlargement of the do- 
main of good prize of war, to the theatre of neutral trade 
between neutral ports, upon the fiction of possible contin- 
uous voyage for cargo, yet to be named and framed. 

The future interests of the United States imperatively 
demand that the barriers against belligerent pretension 
which this case of the "Springbok" has overturned, should 
be firmly re-established by the judgment of this Interna- 
tional Tribunal. 

We may well conclude this argument to the justice and 
benevolent wisdom of this enlightened Commission, by the 
grave counsels of the celebrated French publicist. Count 
Portalis, as given by him to the prize courts of France, on 
their installation in 1800, in the midst of the fiercest wars: 

Courts of law deserve the severest censure when, instead of 
proceeding on the principle of international law applied with 
equity, and in a manner rather favorable to neutrals, they take 
for their point of departure the interest of the belligerents. State 
policy may have its plans and mysteries, but on the bench, reason 
should ever maintain its empire and its dignity. When arbitrary 
pretexts, founded on fear or selfishness, direct the judgment seat, 
all is lost. By inspiring terror, you may, for a moment, increase 
your strength, but it is by inspiring confidence that you will main- 
tain it permanently. 

In the confident expectation that this Mixed Commission 
will make restitution and give indemnity to these memorial- 
ists for the unwarranted condemnation of the cargo of the 
"Springbok," we have occasion further to consider only the 
proper pecuniary expression of that indemnity. 



THE SI'RINCnoK r.VSE 7i\ 

The amount to he aicarded to the Memorialists. 

There seems to be no reason to <loiil»t tlial tlu* apnr. 
ment in the market at Nassau, as piven in tlie iiuMno 
proofs, is the reasonable measure of tht-ir danui^es, and ' 
sum, with interest, should be the measure of the niemorial- 
ists' indemnity. 

The great value of this ear^o. and that the Nnssau ap- 
praisement was not excessive, may well !•«• inffrnd fr«»m thf 
forced sale by the marshal in a niarket for wiiirli tl 
was unsuited. This sale produet>d vrry nearly ^"iod.CMHi 

That interest, for delay in satisfaction, is a niHcssary and 
component part of indenmity, shouhi br considrnMl b» 
settled between the United States and (Irt-at Hritain. nt 
least, bv the award of the (JiMicva tribunal <iji tin* .Mabama 
claims. 

There, after special and fiill ar^unuiit by <otM>M-l on both 
sides, on this very ciuestion of ititcrrst, ord<Te<l !»y this 
tribunal, the award embraced interest to the aniount of 
some $5,000,000. (See argument and award in the ".Ma- 
bama Claims.") 

All which is respectfully submitted. 

Newport, R. L, August 18, 1873. 

\Vm. M. Kvahts, 

Of Counsel for Claimants. 

Respectfully submitted, 

J. IM. Carlisle, 
H. B. M's Counsel. 

NOTE. 

In the "statement" which forms a part of this argument 
we have referred to the "Proofs for Defence," introduced 
by the United States, and authenticated only by the cer- 
tificate of the Secretary of War. , 

As those proofs do not purport to contam any evidence 
against the cargo of the "Springbok,'' in question, or her 

48 



722 SPEECHES OF WILLIAM MAXWELL EVARTS 

voyage, or any prospective voyage for the cargo, we have 
not regarded tlieir presence as bearing otherwise than 
towards the acquittal, and not the condemnation, of this 
cargo. But the memoriahsts, under the form of the cer- 
tification adopted by the Secretary of War, were warranted 
in supposing that the originals of all papers thus authen- 
ticated by copies, were on file in the War Department. 
Upon the demand of the claimants, however, for the pro- 
duction of an original paper for inspection and verification, 
it appears that the paper demanded is not in the Depart- 
ment, and, upon further inquiry, that other papers con- 
tained in these "Proofs for Defence" are not, as originals, 
to be found in the Department. 

Under these circumstances it is impossible to expect the 
claimants to submit to have the trial of this cause before 
the Mixed Commission at all prejudiced by "proofs," lack- 
ing, in substance as well as form, every quality of evidence. 

The claimants, for the reasons given here and in the said 
"Statement," respectfully submit that said so-called "Proofs 
for Defence" should be discarded by the Commissioners 
from all consideration.* 

W. M. E. 

*The appendix to Mr. Evarts's printed argument is omitted here as not essential 
to an understanding of the argument itself. The appendix contained the "black 
list" of British vessels suspected of attempting breach of blockade, an extract from 
a letter addressed by Mr. Seward as Secretary of State to Mr. Gideon Welles, Sec- 
retary of the Navy, as to the duties of naval officers in the matter of seizure of ves- 
sels as prize, and a synopsis of the cargo of the "Springbok." 



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